"...and do equal right to the poor and to the rich..."
March 16, 2016 7:28 AM Subscribe

At 11am Eastern time, President Obama will nominate Merrick Garland, the chief judge of the U.S. Court of Appeals for the District of Columbia, to the Supreme Court. Judge Garland is a centrist who was previously considered by the President for SCOTUS nomination in 2010, during the selection process which gave us Justice Sotomayor. He is reportedly "well known, well respected, and tremendously well liked in Washington legal circles; even Republicans have nice things to say about him."

Background
Garland is a Jewish white male who would not add religious diversity to the bench, and at age 63 would be one of the oldest people ever to be confirmed to the high court.

"President Obama’s nominee is expected to languish in the Republican-controlled Senate, where lawmakers have vowed to not hold hearings or votes until at least after the November elections."

SCOTUSBlog: The Potential Nomination of Merrick Garland
Greensboro.com: Biographical Information on Merrick Garland
ThinkProgress: Who is Merrick Garland?
NPR: President Obama To Announce Merrick Garland As Supreme Court Nominee
National Review: The 'Moderates' are not so Moderate: Merrick Garland
HuffPost: He's by far the least controversial -- and most confirmable -- candidate from the president's short list.
LawNews: Supreme Court Nominee Merrick Garland: Tough on Crime, but Soft on Guns?
Bustle: Is Merrick Garland a Liberal? Also: Who Is Lynn Garland? Merrick Garland's Wife Has Long Known The Legal System's Ins & Outs
Romper: Who Is Merrick Garland? He's Been Considered For The Supreme Court Before

posted by zarq (459 comments total) 41 users marked this as a favorite

Once again Obama negotiates with himself by nominating a centrist...
posted by twsf at 7:30 AM on March 16, 2016 [65 favorites]

i wish Obama would have waited to see how the presidential primaries were going before deciding on starting this fight. I think this only helps Trump.
posted by resurrexit at 7:31 AM on March 16, 2016 [1 favorite]

The politicized editing of his Wikipedia page has already begun. (via)
posted by duffell at 7:31 AM on March 16, 2016 [9 favorites]

Or he expects absolutely no one to get past the Senate, and nominated someone that would give the GOP the most heartburn blocking until January when his successor can name someone more progressive.
posted by Punkey at 7:32 AM on March 16, 2016 [76 favorites]

Garland is a Jewish white male who would not add religious diversity to the bench

I understand this sentence, but I still find it hilarious.
posted by Going To Maine at 7:32 AM on March 16, 2016 [21 favorites]

1) trump missile impact
2) SCOTUS stonewall
3) republican party implosion
4) PROFIT!!!!!
posted by quonsar II: smock fishpants and the temple of foon at 7:32 AM on March 16, 2016 [6 favorites]

My primary sadness is that we don't have the possibility of women controlling two branches of government and the Fed in the immediate future.
posted by Going To Maine at 7:33 AM on March 16, 2016 [29 favorites]

Somewhere in my editing process I seem to have accidentally eliminated a couple of words....

This: "Garland is a Jewish white male who would not add religious diversity to the bench...."
should have read:
"Garland is a Jewish white male who would not add religious or racial diversity to the bench...."

posted by zarq at 7:34 AM on March 16, 2016 [2 favorites]

Garland is a Jewish white male who would not add religious diversity to the bench

Jeet Heer, in a very Jeet Heer move, is now twitter-essaying about why nobody appoints Protestant SCOTUS judges
posted by dismas at 7:34 AM on March 16, 2016 [10 favorites]

Once again Obama negotiates with himself by nominating a centrist...

The other theory is that Garland was the only option to appear in two groups: the "I am willing to engage in a vicious public fight over my character and endure months of slander" group, and the "this person will be at least an acceptably moderate justice if the GOP changes their mind and agrees to him" group.

There probably weren't a lot of people in both groups.
posted by mightygodking at 7:36 AM on March 16, 2016 [116 favorites]

Still no Protestants on the Supreme Court. When will Protestant lawyers catch a break in this country?!
posted by chaz at 7:36 AM on March 16, 2016 [15 favorites]

What punkey says. I think this is some more chess. If he nominates a liberal, the GOP has no incentive to consider. Because he's a centrist that GOPers have previously approved of, they might roll the dice after whining a lot....considering a Dem win in the presidential election which would definitely lead to a more liberal nominee.

Of course game theory assumes that you have somewhat "rational" actors.....

I'm primarily disappointed in how old Garland is....
posted by lalochezia at 7:37 AM on March 16, 2016 [5 favorites]

Nomination is a two way street - some potential nominees who are younger, more diverse, and just as qualified and wonderful may have decided to take the risk and wait for the next pick, considering how contentious, personally hurtful, and likely futile this confirmation battle will be.

I think this is exactly right, although I understand why people are disappointed by Obama not saying 'fuck it, let's nominate someone extremely liberal' in a west-wingy move.

it might be that Obama is more confident that his successor will be a Democrat who can appoint someone more likely to play the role Scalia did, but for the liberal wing of the court.
posted by dismas at 7:37 AM on March 16, 2016 [2 favorites]

when his successor can name someone more progressive.

Given that his successor is likely to be Clinton (who's considerably to the centre-right of Obama) or a Republican, is their candidate really going to be more progressive? Sure, she's not going to nominate a fire-breathing theocrat, but also, I can't see Clinton putting forward, say, Lawrence Lessig or someone.
posted by acb at 7:37 AM on March 16, 2016 [10 favorites]

Word from DC law circles is that Garland is the sacrificial lamb for whom a failed nomination is as close to "no big deal" as it can get. Sri Srinivasan will likely get nominated if a Dem wins in November without a confirmed pick.
posted by grumpybear69 at 7:40 AM on March 16, 2016 [38 favorites]

How the heck would you get a progressive confirmed anyway? I mean, the answer is 60 votes obviously, but that seems like a distant dream.

Obama seems like he still doesn't quite get his adversaries, even after seven years. They're going to torpedo this guy even if it hurts them in some way. It's a waste of everyone's time.

considering a Dem win in the presidential election which would definitely lead to a more liberal nominee.

Again, only if you have 60 votes(or I guess 59 and Susan Collins), otherwise it literally doesn't matter.
posted by selfnoise at 7:40 AM on March 16, 2016 [2 favorites]

It's a good thing animated gifs were exiled from Mefi because . . .
posted by jeremias at 7:40 AM on March 16, 2016 [2 favorites]

I can only hope that this is 11 dimensional chess and not actually Obama's pick. A really old guy who will be dead or retired soon? And a "centrist" to boot.

He isn't a Republican, so there's that small mercy anyway.

With luck hell seem perfectly old and white and otherwise acceptable to the Republucans, they'll totally stonewall, and the backlash will hurt them in the Senate and House races so that Clinton can nominate someone younger and perhaps less "centrist", though I have little hope of Clinton nominating someone even as very slightly left leaning as Kagan or Sotomayor.
posted by sotonohito at 7:41 AM on March 16, 2016 [4 favorites]

I can't see Clinton putting forward, say, Lawrence Lessig or someone.

I can't see her putting forward Lessig because his grasp on the reality of the Court is...questionable at best. Someone who openly rejects the reality of the Court as an inherently political body should not be allowed anywhere near it.
posted by NoxAeternum at 7:41 AM on March 16, 2016 [26 favorites]

Also nominating a centrist rather than a hard-core lefty makes the GOP obstructionists look even worse than they already do.
posted by grumpybear69 at 7:42 AM on March 16, 2016 [19 favorites]

USA Today: Supreme Court or Bust: Merrick Garland: Faced with the opportunity to nominate the court's first Asian American, third African American or fifth woman in history, Obama opted for a mild-mannered Jew from Chicago who may be the most difficult of all the potential nominees for Republicans to rebuff.
...
During 19 years at the D.C. Circuit, Garland has managed to keep a low profile. The court's largely administrative docket has left him without known positions on issues such as abortion or the death penalty.

He is billed as a moderate — a label that may worry liberal advocacy groups concerned about issues such as abortion rights and gun control. At the same time, conservatives insist he's a liberal in centrist clothing.
...
In 2013, he wrote the appeals court's decision ordering the CIA to release information about drone strikes to a federal judge, in a challenge brought by the American Civil Liberties Union. Five years earlier, he ruled that suspects could not be held as enemy combatants without verifiable evidence.

But on criminal law, he has more frequently backed law enforcement over the rights of defendants — an area of law in which Scalia, ironically, sometimes sided with the high court's liberal wing.

posted by zarq at 7:42 AM on March 16, 2016 [2 favorites]

Word from DC law circles is that Garland is the sacrificial lamb for whom a failed nomination is as close to "no big deal" as it can get. Sri Srinivasan will likely get nominated if a Dem wins in November without a confirmed pick.

It'll be very interesting though if Grassley gets spooked and is like, "Okay, so we're doing this."
posted by roomthreeseventeen at 7:42 AM on March 16, 2016 [5 favorites]

Clinton will be putting forward someone to replace Ginsburg, so it’d better be a good one.
posted by Going To Maine at 7:42 AM on March 16, 2016 [1 favorite]

They're going to torpedo this guy even if it hurts them in some way. It's a waste of everyone's time.

My, what confidence! I'm going to come back and six months to test this theory. If you turn out to be wrong, what then? Will you publicly admit it?
posted by anotherpanacea at 7:43 AM on March 16, 2016 [1 favorite]

Sure. Five bucks. Sound good?
posted by selfnoise at 7:44 AM on March 16, 2016 [3 favorites]

My, what confidence! I'm going to come back and six months to test this theory. If you turn out to be wrong, what then? Will you publicly admit it?

Can you not do this, please?
posted by Etrigan at 7:44 AM on March 16, 2016 [63 favorites]

Judge Garland clerked for Justice Brennan early in his career, which should be somewhat heartening to the many superfans of the Great Liberal Justice.

(If Garland makes it through please please let him take up Brennan's efforts against capital punishment.)
posted by sallybrown at 7:44 AM on March 16, 2016 [8 favorites]

I also think they cave and approve the guy, by, say, July. Memail me if you want to bet on it.
posted by Potomac Avenue at 7:45 AM on March 16, 2016 [1 favorite]

Merrick Garland sounds like the name of someone hanging out in Doc Martin's waiting room.
posted by valkane at 7:46 AM on March 16, 2016 [16 favorites]

Would Obama have nominated Garland if he wasn't faced with the particular climate of G.O.P. hyper-obstructionism? My guess is no, which means that he's playing chicken with them.

Which sucks, because they might end up confirming him, and then the scales don't tip like they could have. That's a huge bummer.
posted by mcstayinskool at 7:46 AM on March 16, 2016 [3 favorites]

Obama seems like he still doesn't quite get his adversaries, even after seven years. They're going to torpedo this guy even if it hurts them in some way. It's a waste of everyone's time

...or that's the point. two outcomes are available here, congress confirms him - and looks weak for not standing their obstructionist ground - or congress stalls on him - and looks weak for not confirming someone they previously said obama would never put up. it's pretty lose/lose for the obstructionists. i hope they go with the not confirm him option and obama just keeps putting up more and more liberal and younger judges. this looks like a game of chicken to me, and i think obama is in the winning position.
posted by nadawi at 7:46 AM on March 16, 2016 [70 favorites]

They're going to torpedo this guy even if it hurts them in some way. It's a waste of everyone's time.

Right, because forcing the Republicans to hurt themselves is completely a waste of a Democratic President's time.
posted by GhostintheMachine at 7:47 AM on March 16, 2016 [50 favorites]

Ok, if we're going to have multiple parties we need to organize a pool or something.

(I've actually been thinking that a pool on which of Rubio/Kasich/Cruz ends up endorsing Trump by when would be fun as well. Not sure about MF policy on betting though)
posted by selfnoise at 7:48 AM on March 16, 2016

Maybe ditch the WANNA BET? stuff in here and keep it to actual discussion for discussion's sake.
posted by cortex (staff) at 7:48 AM on March 16, 2016 [27 favorites]

How the heck would you get a progressive confirmed anyway? I mean, the answer is 60 votes obviously, but that seems like a distant dream.

Honestly, Trump as a propsective nominee I think increases the likelihood of flipping a few seats in the Senate to Democrats, which could be enough. Mitch McConnell was making noise awhile back about straight-up having Senators running for re-election campaign against Trump.
posted by dismas at 7:49 AM on March 16, 2016 [1 favorite]

In case anyone is curious, the average age of SCOTUS nominees is just over 53 years. (I took the age column on this page, copied it into excel and did an =Average fn on the cell range.)
posted by zarq at 7:50 AM on March 16, 2016 [1 favorite]

Right, because forcing the Republicans to hurt themselves is completely a waste of a Democratic President's time.

We disagree!
posted by leotrotsky at 7:50 AM on March 16, 2016 [8 favorites]

On NPR there was an "insider tip" that the Congressional Republicans sent a private communication to Obama that if the nominee was Merrick Garland, AND a Democrat won in November, they would confirm Merrick before Obama left office.

....except that the president can just withdraw his nomination at any time.
posted by roomthreeseventeen at 7:53 AM on March 16, 2016 [21 favorites]

On NPR there was an "insider tip" that the Congressional Republicans sent a private communication to Obama that if the nominee was Merrick Garland, AND a Democrat won in November, they would confirm Merrick before Obama left office.

Darn it, roomthreeseventeen, I was just typing that out.
posted by slmorri at 7:54 AM on March 16, 2016

Which sucks, because they might end up confirming him, and then the scales don't tip like they could have. That's a huge bummer.

This guy might not be as progressive as they come, but he's no Scalia.
posted by showbiz_liz at 7:55 AM on March 16, 2016 [30 favorites]

Is there a formal process for withdrawing the nominee? I would assume that if Democrats take the Presidency and the Senate before Garland is confirmed, Obama will withdraw - but is there a way for the current Senate to act before he does that?
posted by sallybrown at 7:55 AM on March 16, 2016 [1 favorite]

Oh shiiiiiiit:

Sen. Orrin Hatch (R-UT), the longest serving Republican on the Senate Judiciary Committee, offered his own thoughts on who President Obama should nominate to fill the seat left open by the death of Justice Antonin Scalia last week. “[Obama] could easily name Merrick Garland, who is a fine man,” Hatch told the conservative news site Newsmax, before adding that “he probably won’t do that because this appointment is about the election. So I’m pretty sure he’ll name someone the [liberal Democratic base] wants.”

posted by kmz at 7:56 AM on March 16, 2016 [74 favorites]

Yeah, I feel like this is some sort of compromise with the Republicans where Obama agreed to pick an old centrist and they agreed to confirm him at least under some circumstnace. I'm not sure I think that was the right move.

Buzz in Iowa is that Jane Kelly was out because the Republicans were planning to do a hardcore campaign of guilt-by-association with every person she'd ever defended as a public defender. They really are the scum of the earth.
posted by ArbitraryAndCapricious at 7:56 AM on March 16, 2016 [13 favorites]

What a bunch of children.

This is about the time you realize that the difference between politics and the school yard are simply the stakes.
posted by Talez at 7:56 AM on March 16, 2016 [7 favorites]

“[Obama] could easily name Merrick Garland, who is a fine man,” Hatch told the conservative news site Newsmax

LOL!
posted by sallybrown at 7:57 AM on March 16, 2016 [4 favorites]

On NPR there was an "insider tip" that the Congressional Republicans sent a private communication to Obama that if the nominee was Merrick Garland, AND a Democrat won in November, they would confirm Merrick before Obama left office

So if you're Obama, and you see the Senate flip along with a Hillary win, do you withdraw the nomination and lose your third appointment on the odds of getting a more liberal justice when the Senate blows up the filibuster of SCOTUS nominees, or do you ride it out?
posted by leotrotsky at 7:57 AM on March 16, 2016 [1 favorite]

....except that the president can just withdraw his nomination at any time.

I would laugh forever if, after an ugly and bitter Party squabble, the Republicans announce they will open confirmation hearings on Garland, only to have Obama withdraw the nomination (with Garland's consent) 24 hours before the hearings are set to begin.
posted by Rock Steady at 7:58 AM on March 16, 2016 [9 favorites]

Once again Obama negotiates with himself by nominating a centrist...

Or this is the only person in America willing to go through a sure-loss confirmation process.
posted by dirigibleman at 7:58 AM on March 16, 2016 [8 favorites]

So if you're Obama, and you see the Senate flip along with a Hillary win, do you withdraw the nomination and lose your third appointment?

Yes, absolutely. And if you're Clinton, you make Obama's input part of your decision in that case. It's too serious a power to play ego games with.
posted by sallybrown at 7:59 AM on March 16, 2016 [13 favorites]

Perhaps if this drags on long enough the nominee withdraws himself saying "this process is absurd"

It shouldn't take eight months to confirm a justice. I think we'll know sooner rather than later whether the Republicans cave.
posted by dismas at 7:59 AM on March 16, 2016 [1 favorite]

I'm sure Obama and Clinton have actually talked about this (and I'd kill to have been a fly on the wall during that conversation...)
posted by showbiz_liz at 7:59 AM on March 16, 2016 [9 favorites]

Trusting NPR "insider tips" is about the best way in the world to get disappointed, I would think ......
posted by blucevalo at 7:59 AM on March 16, 2016 [7 favorites]

This guy might not be as progressive as they come, but he's no Scalia.

Exactly. I'd prefer someone more progressive too, but with only 9 justices on the Court, any shift leftward is a big deal. If Garland makes it on the bench, instead of having four reliable conservative votes (Alito, Scalia, Thomas, Roberts) with Kennedy as the "swing vote," there will only be three reliable conservative votes. Assuming Garland is left of Kennedy, he becomes the Court's new center.
posted by duffell at 7:59 AM on March 16, 2016 [26 favorites]

"Assuming Garland is left of Kennedy"

That's the part that scares me. Remember, Kennedy was appointed as a conservative justice, and he didn't turn out to be quite so much of one. What if Garland skews right? Considering the stuff that hangs at the 5-4 level in SCOTUS, that's not a game I want to roll dice with.
posted by mcstayinskool at 8:01 AM on March 16, 2016 [3 favorites]

That's the part that scares me. Remember, Kennedy was appointed as a conservative justice, and he didn't turn out to be quite so much of one. What if Garland skews right?

This is almost never what happens - justices are overwhelmingly more likely to skew left after appointment. Let me see if I can find an article...
posted by showbiz_liz at 8:03 AM on March 16, 2016 [12 favorites]

that's not a game I want to roll dice with.

It's rolling the dice harder to assume Clinton will win in November. Obama took the one chance he thought he had to get someone into the court before a possible change in power in the White House.
posted by Potomac Avenue at 8:04 AM on March 16, 2016 [12 favorites]

Assuming Garland is left of Kennedy, he becomes the Court's new center.

The NY Times seems to think that Breyer would become the Court's new center. According to their calculations Garland's slightly to the left of both Breyer and Kagan. They cite "measures of ideology by four political scientists", though, so who knows.
posted by galaxy rise at 8:04 AM on March 16, 2016 [2 favorites]

Obama seems like he still doesn't quite get his adversaries, even after seven years.

What? This nomination is a clear indication that President Obama understands his adversaries perfectly, and generally delights in outplaying them. If you don't see that happening, then you may have misconstrued what President Obama actually wants, which is fine, but don't mistake it for naiveté on his part.
posted by The Bellman at 8:04 AM on March 16, 2016 [90 favorites]

I would be ecstatic to see Kennedy's attention-seeking decision-making days come to a close.
posted by sallybrown at 8:04 AM on March 16, 2016 [3 favorites]

Derail but if you're curious:

Of course game theory assumes that you have somewhat "rational" actors.....

The rationality that game theory assumes doesn't mean that you're Vulcan or logical or smart or sane. It only means you behave in goal-oriented ways. The example I usually use in game theory classes is Jeff Dahmer, who was perfectly "rational" in game-theoretic terms -- he had goals, and acted in ways he intended to further those goals. Likewise it doesn't mean you're selfish; you can easily model someone whose goals are "make this other person happy."
posted by ROU_Xenophobe at 8:04 AM on March 16, 2016 [25 favorites]

What if Garland skews right?

But, has that ever happened in the history of the court? Brennan and Warren were nominated by Eisenhower. Souter was nominated by Bush. Justices go straight or turn left once appointed, I can't think of the opposite ever occurring.
posted by leotrotsky at 8:04 AM on March 16, 2016 [3 favorites]

Replacing Scalia with a centrist would be a significant leftward shift in SCOTUS. I thought I saw the article showbiz_liz mentions as well, so this is a decision that only gets better with time.
posted by GhostintheMachine at 8:05 AM on March 16, 2016 [2 favorites]

"Assuming Garland is left of Kennedy"

That's the part that scares me. Remember, Kennedy was appointed as a conservative justice, and he didn't turn out to be quite so much of one. What if Garland skews right? Considering the stuff that hangs at the 5-4 level in SCOTUS, that's not a game I want to roll dice with.

There's no way to avoid rolling the dice, at least some. Any nominee could be on the bench for 20+ years, and people and issues change over time.
posted by Alluring Mouthbreather at 8:05 AM on March 16, 2016 [3 favorites]

Announcement happening now - Live Stream:

https://www.whitehouse.gov/live
posted by magstheaxe at 8:07 AM on March 16, 2016

It's a waste of everyone's time.

Obama does his job as defined in the Constitution. The Senate obstructs. Offstage, Tea Baggers go into a froth that even considering Garland is RINO territory during an election year.
posted by CBrachyrhynchos at 8:07 AM on March 16, 2016 [10 favorites]

only to have Obama withdraw the nomination (with Garland's consent) 24 hours before the hearings are set to begin.

Ideally announcing that the choice is too important to be left to this Senate and the American people should have a chance to decide who will be sitting to confirm a nomination after the elections...
posted by Naberius at 8:07 AM on March 16, 2016 [17 favorites]

Sorry, to clarify I didn't mean skewing to the right after entering the court, I meant skewing to the right of initial expectations. You are quite correct that most justices become more liberal over time (Clarence Thomas excluded). NYTimes did a great visualization of that tendency recently.

The points about not taking chances of a Republican president are salient, I'm just holding on to the "there's no way that's happening" thought that helps me sleep at night.
posted by mcstayinskool at 8:08 AM on March 16, 2016

don't mistake it for naiveté on his part

Let’s dispel once and for all with this fiction that Barack Obama doesn’t know what he’s doing. He knows exactly what he’s doing.
posted by nicepersonality at 8:08 AM on March 16, 2016 [140 favorites]

Ah, here it is... Justices get more liberal over time.
posted by GhostintheMachine at 8:08 AM on March 16, 2016 [8 favorites]

Ah, here we go - of course it was 538.

A typical justice nominated by a Republican president starts out at age 50 as an Antonin Scalia and retires at age 80 as an Anthony Kennedy. A justice nominated by a Democrat, however, is a lifelong Stephen Breyer.
posted by showbiz_liz at 8:10 AM on March 16, 2016 [7 favorites]

Ah, jinx
posted by showbiz_liz at 8:10 AM on March 16, 2016 [6 favorites]

They cite "measures of ideology by four political scientists", though, so who knows.

Those are Martin-Quinn scores, which are based on how judges vote. Like DW-NOMINATE for judges, but tweaked in ways I forget to take account of special judicial stuff. I don't do judicial but AFAIK they're more or less uncontroversial except maybe among people for whom any quantification is anathema.
posted by ROU_Xenophobe at 8:10 AM on March 16, 2016 [2 favorites]

Justices get more liberal over time.

That damn liberally biased reality again! Curses!
posted by Naberius at 8:11 AM on March 16, 2016 [3 favorites]

So if you're Obama, and you see the Senate flip along with a Hillary win, do you withdraw the nomination and lose your third appointment on the odds of getting a more liberal justice when the Senate blows up the filibuster of SCOTUS nominees, or do you ride it out?

Withdraw just to screw with them. I see it like this:

February: "WE WILL NOT EVEN PRIVATELY MEET THE NOMINEE."
March (as Trump-as-Nominee looks likely): "Well, we could talk..."
July: "Hey! Let's have hearings about that nice, moderate judge."
November 9 (after GOP loses the White House and Senate): "You withdrew a nominee? What of your legacy? Now we'll get some super-liberal."
posted by MrGuilt at 8:12 AM on March 16, 2016

....something something unhatched chickens....
posted by zarq at 8:14 AM on March 16, 2016 [4 favorites]

Watching this live stream, how fucking cool would it to be to stand there while the President of the United States talks about how great you are at your job and how good a person you are for like 15 minutes. Even if he is just the sacrificial lamb this alone might make it worth it.
posted by DynamiteToast at 8:16 AM on March 16, 2016 [80 favorites]

It sounds from that story like Garland gave the speech after Forrest Gump.
posted by roomthreeseventeen at 8:17 AM on March 16, 2016

I also suspect that a centrist nominee would be in the cards regardless assuming a Dem president.
posted by CBrachyrhynchos at 8:18 AM on March 16, 2016

Listening to Obama talk right now makes me realize just how much I'm going to miss hearing his voice a year from now. He's so calm and reassuring.
posted by hollygoheavy at 8:19 AM on March 16, 2016 [38 favorites]

Merrick Garland would have been a good appointment for Bill Clinton. Now he is too old. But this makes sense as a way to the troll the Republicans. Srinavasan still has a lot of time to reach the Supreme Court in better circumstances. The one I really want is Goodwin Liu
posted by knoyers at 8:19 AM on March 16, 2016

Garland is not an exciting pick for liberals. Best case is another Breyer, but the worse case could be right of Kennedy. It's an 11th dimensional chess move, and Obama's presidency can be neatly defined as a series of such moves, with a highly questionable success rate. He's had as many successes (eg Stimulus bill and eventual Obamacare passage) as times that he's out thought himself into a corner (Iraq/Gitmo/Syria policy, public option cave, and 2011 debt ceiling debacle).

But if the Republicans hold and obstruct him, there's no reasonable case for doing so, and it cements them as completely unhinged from functioning governance.
posted by T.D. Strange at 8:19 AM on March 16, 2016 [8 favorites]

Obama just said tomorrow Garland will start going to the hill to meet with Senators. I'm now picturing him getting to Republican Senators offices an hour before anyone else and making it so they can't get to their office for fear of Garland saying 'Good Morning' and their constituents deciding that counts as a meeting.
posted by DynamiteToast at 8:23 AM on March 16, 2016 [34 favorites]

I'm confident that Obama believe the GOP senators are now boxed-in and will not consider any nominee, so he has nominated someone so obviously qualified, senior and unobjectionable in order to do maximum damage to the GOP over the coming months, at least among voters who don't listen to Glenn Beck. This might allow Clinton to nominate someone younger without having them undermined by a year of scrutiny.

Election year strategy. Make Republicans defend their decision not to nominate while news and comedy shows for the next six months run quotes from the same legislators saying positive things about the nominee. It furthers the image that the DNC wants to paint that the RNC has no interest in actually working for the people.
posted by dances with hamsters at 8:25 AM on March 16, 2016 [17 favorites]

Obama just said tomorrow Garland will start going to the hill to meet with Senators.

Garland will knock them all down!!
posted by prize bull octorok at 8:26 AM on March 16, 2016 [24 favorites]

Those are Martin-Quinn scores, which are based on how judges vote.

Martin-Quinn scores are only calculated for Supreme Court justices. I'm not sure how Garland was placed on that continuum. The article says "Judge Garland’s score is based on his time as a federal appeals court judge", but I'm not sure how the Martin-Quinn score MCMC model could be applied to a single judge outside the Court. I suspect it was a relatively subjective estimate.

We (Lee Epstein and I) are currently in the process of analyzing the DC Circuit's opinions covering Garland's term in office. We'll see what, if anything, that reveals.
posted by jedicus at 8:28 AM on March 16, 2016 [9 favorites]

Ok I know that I wish Obama had nominated someone more liberal, or a woman or minority, but listening to Garland talk makes me like him a lot. I guess I'm a big softy but him getting choked up at the "greatest honor and gift" he's ever received was really endearing.
posted by DynamiteToast at 8:30 AM on March 16, 2016 [11 favorites]

I'm glad I'm not the only person who would have immediately started crying in sentimental joy when taking the mic over from Obama. I would be an absolute emotional mess up there.
posted by sallybrown at 8:30 AM on March 16, 2016 [6 favorites]

Once again Obama negotiates with himself by nominating a centrist

stats on his decisions show he's liberal. Orrin Hatch loves him so folks assume he is moderate
posted by Ironmouth at 8:32 AM on March 16, 2016 [1 favorite]

Garland will knock them all down!!

If this nomination fails, sources say Obama will nominate Sephiroth next.
posted by Rock Steady at 8:32 AM on March 16, 2016 [16 favorites]

If we get Trump for president there's no way he doesn't nominate Kefka.
posted by selfnoise at 8:33 AM on March 16, 2016 [19 favorites]

The tracker at the bottom of this page pleaseth me.
posted by prefpara at 8:34 AM on March 16, 2016 [20 favorites]

Majority Leader McConnell just tweeted he's on his way to the floor to make remarks about the SCOTUS nominee (cspan should have it).
posted by DynamiteToast at 8:35 AM on March 16, 2016

A very liberal judge would have a 0% chance of getting confirmed and a 100% chance of getting publicly shit on for the next six months. I'm OK with this.
posted by theodolite at 8:37 AM on March 16, 2016 [3 favorites]

The tracker at the bottom of this page pleaseth me.

That, plus the positive quotes from leading Republicans, is such a smart move.

The only way they could make it better would to move that tracker to the top of the page, and stick it on every White House webpage.
posted by leotrotsky at 8:38 AM on March 16, 2016 [4 favorites]

I rather think that if Obama had handed his pick to the Republicans, it wouldn't have been Garland.
posted by Devonian at 8:38 AM on March 16, 2016 [2 favorites]

So, Obama handed his pick to the GOP?

Fuck that dude.

Why is the President making deals and getting things done? It’s like he’s just another politician…
posted by Going To Maine at 8:40 AM on March 16, 2016 [47 favorites]

I like him, you can see why someone like Hatch genuinely likes him too. This is pretty classic Obama, not just offering the best pick to stick it to the Republicans, but to offer them...if they finally want to reach across the aisle....someone they would really support as well. He's offered good deals to them for his entire Presidency, in the bizzaro world where they weren't assholes for eight years he could have gotten so much done.

yeah, he could have saved the economy, passed the farthest-reaching health insurance ever, ended don't ask don't tell, passed Dodd-Frank, saved the auto industry, pulled out of Iraq, got bin Laden, sunsetted the Bush tax cuts, nominated 3 liberal judges to the Supreme Court, while at the end of his term presided of a stock market with double the valuation it had before, under 5% unemployment, no inflation and $1.75 gas.
posted by Ironmouth at 8:40 AM on March 16, 2016 [188 favorites]

A very liberal judge would have a 0% chance of getting confirmed and a 100% chance of getting publicly shit on for the next six months. I'm OK with this.

To be fair, the same is true of Merrick Garland.
posted by dirigibleman at 8:41 AM on March 16, 2016

$1.75 /gallon gas is not a good thing if you care about the planet. Then again, that ship has already sailed.
posted by entropicamericana at 8:41 AM on March 16, 2016 [13 favorites]

My biggest knock on Garland is he's another former prosecutor, another pick from the DC Court of Appeals, and another Harvard Law graduate. Someone like Jane Kelly could have brought MUCH needed defense experience to a bench that has none. And if confirmed, EVERY sitting justice will have gone to Harvard or Yale. If you're at all concerned about mass incarceration, the death of the 4th amendment, police brutality, or rule by the oligarchy, another career prosecutor from Harvard is the worst of all possible choices.
posted by T.D. Strange at 8:42 AM on March 16, 2016 [24 favorites]

for eight years he could have gotten so much done.

And what have the Romans ever done for us?
posted by chimaera at 8:42 AM on March 16, 2016 [11 favorites]

twsf: Once again Obama negotiates with himself by nominating a centrist...

Or tries to put forward a potential candidate that he supports and already has a history of support from Senate Republicans:

In 1995, President Clinton nominated Garland for an opening on the D.C. Circuit, and he received a hearing in December of that year. During that confirmation hearing, Garland was asked about "judicial activism." He answered that "[f]ederal judges do not have roving commissions to solve societal problems. The role of the court is to apply law to the facts of the case before it "not to legislate, not to arrogate to itself the executive power, not to hand down advisory opinion on the issues of the day."

Garland's nomination was stalled by Senate Republicans, not because of opposition to him but because of a dispute over whether to fill the twelfth seat on that court at all. Clinton re-nominated Garland in January 1997, and he was confirmed approximately three months later by a vote of 76-23. But once again, opposition did not relate to Garland's own qualifications. To the contrary, Senator Orrin Hatch called him "not only a fine nominee, but as good as Republicans can expect from [the Clinton] administration" (a sentiment Hatch repeated in 2003). Garland also had the support of senior administration officials from the Reagan Justice Department, as well as that of Judge Laurence Silberman, who was appointed to the D.C. Circuit by Ronald Reagan.

posted by filthy light thief at 8:43 AM on March 16, 2016 [2 favorites]

Sounds like McConnell isn't going to do shit.
posted by roomthreeseventeen at 8:44 AM on March 16, 2016

The tracker of time-to-confirmation reads to me like Obama's putting a 'Sell By' date on Garland, after which he can validly retract him and start afresh.
posted by Capt. Renault at 8:44 AM on March 16, 2016 [1 favorite]

You know people are pretty deep in the partisan tank when you can't even lament Republicans being obstructionist without getting pushback.
posted by Drinky Die at 8:44 AM on March 16, 2016 [3 favorites]

Oh man. Watching McConnell's remarks was not a wise choice for me. Anger anger. Anger.
posted by prefpara at 8:45 AM on March 16, 2016 [5 favorites]

To be fair, the same [0% chance of getting confirmed] is true of Merrick Garland.

An hour ago I would have agreed with that one hundred and ten percent. I just watched President Obama and Judge Garland speak, and I'm watching the reaction unfold in the press. Now.... I'm not sure.
posted by The Bellman at 8:45 AM on March 16, 2016

We all seem to be thinking in terms of a Clinton win. Consider the (hopefully very remote) chance of a Trump win.

This might be a hedge against whatever insane nominee he would put forward. If Trump wins the GOP, lame-duck, senate quickly approves Garland and all of us avoid the worst case scenario.
posted by oddman at 8:46 AM on March 16, 2016 [4 favorites]

Martin-Quinn scores are only calculated for Supreme Court justices.

Thanks. I should have remembered that.

I wonder if they're the scores that Lee and either Andrew or Kevin did (with some other people) where they mapped the MQ scores into nominate space? If that's so, then they're basing Garland's ideal point on Clinton and his confirmation voting but I forget exactly how the original people did that for the nominate-based scores. Is it just Clinton's ideal point or did whoever it was do a regressiony thing to look at the Senate voting?
posted by ROU_Xenophobe at 8:46 AM on March 16, 2016 [1 favorite]

On NPR there was an "insider tip" that the Congressional Republicans sent a private communication to Obama that if the nominee was Merrick Garland, AND a Democrat won in November, they would confirm Merrick before Obama left office.

So, Obama handed his pick to the GOP?

Fuck that dude.

Interesting read of the first paragraph. It sounds like the Congressional Republicans were saying "this guy's the best we'll get if we have another Democratic president, but we won't play ball until we know we're in a corner in November."
posted by filthy light thief at 8:47 AM on March 16, 2016 [2 favorites]

selfnoise How the heck would you get a progressive confirmed anyway? I mean, the answer is 60 votes obviously, but that seems like a distant dream

I'd argue that the fact that so many people have accepted this as some sort of ironclad, totally acceptable, rule is not merely a horrible thing, but potentially a useful election year cudgel to smack the Republicans with.

It didn't used to take 60 votes for your party to get a Supreme Court Justice nominated. The Senate, the House, and more generally the Republicans and the Democrats understood that the system wouldn't survive unrestricted obstructionism and they actually governed.

Nixon appointed William Rehnquist with a majority Democratic Senate, and despite Rehnquist being a hardcore right wing activist, the Senate Democrats in 1971 recognized that elections have consequences and that Presidents get to pick Supreme Court members.

When Reagan made him Chief Justice, replacing the moderate Warren Burger with a fire breathing arch conservative, again the Senate was majority Democratic, and again it confirmed him anyway because, much as it is unpleasant Presidents get to pick Supreme Court Justices.

Yes, sometimes, for specific reasons, the Senate will reject a nominee. But mostly in the past that happened when someone was manifestly unqualified for the job (Robert Bork, Harriet Miers, etc) and not simply out of partisan spite or because the justice in question was too liberal/conservative.

It is entirely, 100%, no argument, true that today the Republicans have mutated the Senate into a highly efficient obstruction machine and that it probably will take 60 votes to get anyone to the left of Ronald Reagan's ghost appointed, but that's not the way its supposed to be.

And we shouldn't simply accept that, but rather we should be shouting it from the rooftops. That the Republicans are now so corrupt, so vile, that they're trying to extort massive policy concessions merely for doing their Constitutionally mandated jobs.

I hope that this nomination of a Milquetoast right leaning tool is Obama finally waking up and realizing that he needs to use anything and everything he can as a weapon to fight the Republicans, and that he doesn't expect his centrist dinosaur to win but rather is seeking to use the expected Republican refusal to even meet with him as a means of attacking them for electoral gains.

I fear that Obama is doing his usual surrendering, cowardly, groveling before Republican might routine and that our antique right winger here really does represent someone he hopes might appease the Republicans enough that they'll deign to let him sit (for a brief few years before he croaks) on the Court.
posted by sotonohito at 8:47 AM on March 16, 2016 [17 favorites]

Orrin Hatch was also the one who initially suggested Ruth Bader Ginsburg to the Clinton administration a little over 20 years ago, too.
posted by Joey Buttafoucault at 8:48 AM on March 16, 2016 [24 favorites]

An hour ago I would have agreed with that one hundred and ten percent. I just watched President Obama and Judge Garland speak, and I'm watching the reaction unfold in the press. Now.... I'm not sure.

Could you point to what you find encouraging? I'm seeing only boilerplate press response.
posted by leotrotsky at 8:52 AM on March 16, 2016

From Ruth Bader Ginsburg's wikipedia:

President Bill Clinton nominated her as an Associate Justice of the Supreme Court on June 14, 1993, to fill the seat vacated by retiring Justice Byron White. Ginsburg was recommended to Clinton by then-U.S. Attorney General Janet Reno after a suggestion by U.S. Senator Orrin Hatch (R-Utah). At the time of her nomination, Ginsburg was viewed as a moderate.
posted by DynamiteToast at 8:52 AM on March 16, 2016 [2 favorites]

Orrin Hatch was also the one who initially suggested Ruth Bader Ginsburg

Three cheers for no takebacks!
posted by mcstayinskool at 8:54 AM on March 16, 2016 [22 favorites]

I'm much more interested in the Quinn Martin scores. Where do the justices stand on vital issues like car chase sequences and cops who don't play by the rules?
posted by CheesesOfBrazil at 8:54 AM on March 16, 2016 [16 favorites]

our antique right winger

Sixty-three isn't exactly antique and the guy isn't on death's door, for christ's sake.
posted by malocchio at 8:55 AM on March 16, 2016 [25 favorites]

Sixty-three isn't exactly antique and the guy isn't on death's door, for christ's sake.

That's a good 15 years on the Court.
posted by leotrotsky at 8:56 AM on March 16, 2016 [2 favorites]

To be fair, the same [0% chance of getting confirmed] is true of Merrick Garland.

An hour ago I would have agreed with that one hundred and ten percent. I just watched President Obama and Judge Garland speak, and I'm watching the reaction unfold in the press. Now.... I'm not sure.

By the end of the day the press will be parroting Republican talking points that Garland is the most liberal communist America-hater to ever don a robe.
posted by dirigibleman at 8:56 AM on March 16, 2016 [2 favorites]

Where do the justices stand on vital issues like car chase sequences and cops who don't play by the rules?

You jest, but as of 2007 they were in favor of both 8-1.
posted by jedicus at 8:57 AM on March 16, 2016 [16 favorites]

Sounds like McConnell isn't going to do shit.

So many garbage strikes start with everyone taking a hard-core principled stand. And Obama just hopped off the truck and went on a smoke break, knowing that he just needs to let the stink build up. "Let me know when you're ready!"
posted by Capt. Renault at 8:57 AM on March 16, 2016 [6 favorites]

And we shouldn't simply accept that, but rather we should be shouting it from the rooftops. That the Republicans are now so corrupt, so vile, that they're trying to extort massive policy concessions merely for doing their Constitutionally mandated jobs.

I've been wondering why the Democrats aren't hitting on the fact that Senators make 175K a year and are refusing to do their job. It's like a herd of Kim Davis's.

Sure, none of the Senators want to remind the American people how large their salaries compared to the general public, but come on y'all *do* something.
posted by Brandon Blatcher at 8:57 AM on March 16, 2016 [32 favorites]

I'm fine with this. You can't actually get a liberal appointed, so your only options waste our time by appointing a liberal who can't be seated (and hope a Democrat wins with White House), or try to get a reasonable moderate on the court so you don't risk going back to a 5-4 conservative majority as soon as a Republican becomes president. I think his age is a plus--Garland, if appointed, with be on the bench 15 years or so, not 30. It's a safe placeholder position. I don't see this as 11-dimensional chess at all. It's Obama acknowledging that this is the best appointment he can make in light of the current senate.
posted by Pater Aletheias at 8:58 AM on March 16, 2016 [11 favorites]

A lot of sudden experts on this guy's supposedly arch-conservative judicial philosophy in this thread.
posted by Think_Long at 8:58 AM on March 16, 2016 [12 favorites]

I can't imagine Obama would withdraw the nomination in November, and in fact it would be unjust of him to do so. If you have someone who has agreed to deal with the shitstorm for six months, you don't yank the prize from under their feet. Yes, I'd like a more liberal nominee, but not that way.
posted by tavella at 8:59 AM on March 16, 2016 [14 favorites]

Majority Leader McConnell just tweeted he's on his way to the floor to make remarks about the SCOTUS nominee (cspan should have it).

Ugh, they're doing a GMO labeling bill. Obstruct Republicans, obstruct!
posted by Drinky Die at 9:00 AM on March 16, 2016 [1 favorite]

Breaking: Obama nominates Donald Trump to US Supreme Court. "I just thought, fuck it - no one will be expecting this," giggles POTUS.
posted by the quidnunc kid at 9:00 AM on March 16, 2016 [37 favorites]

Kind of stoked to see how Orrin Hatch responds to this excellent use of his previous comments. (Also I'm feeling semi-positive feelings about him since he made this joke on twitter w/Lin-Manuel Miranda.)
posted by a fiendish thingy at 9:00 AM on March 16, 2016 [3 favorites]

MetaFilter: A lot of sudden experts
posted by entropicamericana at 9:01 AM on March 16, 2016 [71 favorites]

Orrin Hatch was also the one who initially suggested Ruth Bader Ginsburg

Well, damn. And he didn't learn to keep his mouth shut after that?
posted by imnotasquirrel at 9:02 AM on March 16, 2016 [3 favorites]

Honestly, I don't know that establishment Democrats who tend to be hawkish, supportive of the War on Drugs, and deeply ambivalent regarding gay rights are up for rocking the boat either.
posted by CBrachyrhynchos at 9:03 AM on March 16, 2016 [3 favorites]

Any way you look at it, he's going to be more liberal than Scalia, so that's undoutably a win, even if it's a minor one.

Plus there's no way the Republicans can look good. His name was suggested by a Republican, so that can be used to hold their feet to the fire. His record is centrist, so Obama can point out that he's willing to "work across the aisle," and this will be shot across the bow for the Senate campaigns. Every GOP senator will have to face the record of obstructionism of the past six years head-on.
posted by CheeseDigestsAll at 9:05 AM on March 16, 2016 [5 favorites]

I wish Obama would have waited to see how the presidential primaries were going before deciding on starting this fight. I think this only helps Trump.

You say that like that's bad for the Democratic party.
posted by pwnguin at 9:08 AM on March 16, 2016 [1 favorite]

Plus there's no way the Republicans can look good.

Depends on the audience. To some people, the Senate is being brave and strong by taking this unprecedented stand that will prevent the liberal Obama from further harming our country.

Hell, I'm a dyed in the wool liberal who just needs to know whether I'm voting for Hillary or Bernie in November and I'm kinda impressed with McConnell's outrageous antics. They should be occurring and they shouldn't work, and he sure as hell shouldn't have gone down this road, but he gets a small hat tip for being able to pull off what he has. The liberals could stand to learn a few things from him.
posted by Brandon Blatcher at 9:10 AM on March 16, 2016 [9 favorites]

Someone like Jane Kelly could have brought MUCH needed defense experience to a bench that has none

I regret to state that any candidate's criminal defense background is nothing more these days than grist for the "anti" propagandists. Ms. Clinton continues to be reviled for having been a criminal defense counsel once upon a time. The lurid misdeeds of Judge Kelly's past clientele would guarantee that their sins would be visited upon her, and she would be irreducibly tarred with the brush of being "objectively pro-criminal."

So much for the right to a defense. . . . especially at public expense.
posted by rdone at 9:10 AM on March 16, 2016 [6 favorites]

For those curious, you can read all about Metafilter's deep and abiding disappointment in Obama's nomination of Kagan and Sotomayor, too.
posted by one_bean at 9:16 AM on March 16, 2016 [89 favorites]

I can't imagine Obama would withdraw the nomination in November, and in fact it would be unjust of him to do so.

as long as liberals keep expecting just behavior conservatives will keep winning.
posted by quonsar II: smock fishpants and the temple of foon at 9:19 AM on March 16, 2016 [3 favorites]

For those curious, you can read all about Metafilter's deep and abiding disappointment in Obama's nomination of Kagan and Sotomayor, too.

With glee!
posted by Going To Maine at 9:22 AM on March 16, 2016 [3 favorites]

It's a lifetime appointment. Age is particularly relevant.

In this case Obama is clearly looking for a compromise though, he would nominate someone younger if he thought it could work out.
posted by Drinky Die at 9:23 AM on March 16, 2016 [2 favorites]

It's a lifetime appointment. Age is particularly relevant.

No, it really isn't.
posted by roomthreeseventeen at 9:24 AM on March 16, 2016 [4 favorites]

Obama's been pretty upfront about his belief that Trump will not be elected. Now that may be some Machiavellian shit or maybe he's just wrong, but if he does actually believe that there's no point not putting someone forward who's going to yield maximum embarrassment for Senate Republicans.

I like and trust No Fucks Given Obama way more than Hope And Change Obama or 11-Dimensional-Chess Obama.
posted by tivalasvegas at 9:25 AM on March 16, 2016 [17 favorites]

Lifetime appointments to SCOTUS make about as much sense as the Electoral College.

Can you explain how the age of a nominee isn't relevant to discussion if the appointment is a lifetime appointment? Not trying to be snarky or ageist.
posted by mcstayinskool at 9:28 AM on March 16, 2016 [3 favorites]

No, it really isn't.

Yes, it really is. This is a political position where if you die at the wrong time you can set back the liberal or conservative cause by decades.
posted by Drinky Die at 9:28 AM on March 16, 2016 [6 favorites]

anybody can die at the wrong time.

when i die it will be the wrongest time ever.

this nomination seems a smart move to me; time will tell.
posted by allthinky at 9:30 AM on March 16, 2016 [6 favorites]

Huh. Merrick Garland is second cousins with Iowa governor Terry Branstad. They share a great-grandfather. Small world.
posted by ArbitraryAndCapricious at 9:31 AM on March 16, 2016 [3 favorites]

He could retire at 65 if he wanted (...right in the middle of the next president's first term!) I think him retiring early and being replaced by liberal from a Democratic President is my favorite scenario next to him becoming the surprise leftiest judge ever.

A younger judge could also collapse from a sudden unexpected stroke, hit their head in a fall, or get hit by a turtle dropped by an eagle. Age is not that relevant compared to competency, experience, and willingness.
posted by blnkfrnk at 9:31 AM on March 16, 2016 [1 favorite]

A few comments removed, cool it.
posted by cortex (staff) at 9:32 AM on March 16, 2016

"The wrong time" could as easily be 40 years from now as 15.
posted by DevilsAdvocate at 9:32 AM on March 16, 2016

we can discuss age without being agist and offensive about it. 63 is older than most nominees, if he gets confirmed he'll still likely have a lot of time on the bench. it's probably the least interesting angle to really dig in on unless you've seen everyone on the court's medical records.
posted by nadawi at 9:32 AM on March 16, 2016 [6 favorites]

Can you explain how the age of a nominee isn't relevant to discussion if the appointment is a lifetime appointment? Not trying to be snarky or ageist.

Yeah, seriously. I'm not even saying this guy is a bad choice but I don't think it's ageist to point out that the older you are, on average, the less remaining time you have to live.
posted by showbiz_liz at 9:32 AM on March 16, 2016 [10 favorites]

A fun trip back to the nomination coverage of yore, which is apparently indistinguishable from today's:

"[The President] has been criticized as indecisive or unwilling to stand behind a candidate who might meet with resistance."

"While some conservative groups gave [the candidate] at least partial endorsement, liberal and abortion rights groups expressed certain reservations about her views on privacy rights"

"[The President] was said to have sought a moderate who would move slightly to the left a court that often splits, 5 to 4, on contentious issues."

"'All of our friends in the liberal community are not very excited,' the aide said."

The candidate, of course, was Ruth Bader Ginsburg. I honestly don't think anyone knows what will come of a given Supreme Court nominee.
posted by Copronymus at 9:35 AM on March 16, 2016 [35 favorites]

Yeah, seriously. I'm not even saying this guy is a bad choice but I don't think it's ageist to point out that the older you are, on average, the less remaining time you have to live.

I think we all know that. I also think it's ageist to talk about someone who's 63 like he's on his way out the door. The average age of a US Senator is 62 after all...
posted by zachlipton at 9:35 AM on March 16, 2016 [2 favorites]

OK, I have tried to move on from this but just can't. What the fffff is McConnell talking about with his line about how maybe the next president will nominate Garland and that will be a totally different story, but this is not about "the person" but rather "the principle." I just can't digest this pure garbage!! If you think Garland is a good pick then confirm him!! Stop acting like my vote for Obama expired a few months ago!! He is really the president for real!!
posted by prefpara at 9:35 AM on March 16, 2016 [35 favorites]

Sen. Cornyn speaking on CSPAN now. TLDR: They aren't budging on the obstruction.
posted by Drinky Die at 9:36 AM on March 16, 2016

My biggest knock on Garland is he's another former prosecutor, another pick from the DC Court of Appeals, and another Harvard Law graduate. Someone like Jane Kelly could have brought MUCH needed defense experience to a bench that has none. And if confirmed, EVERY sitting justice will have gone to Harvard or Yale. If you're at all concerned about mass incarceration, the death of the 4th amendment, police brutality, or rule by the oligarchy, another career prosecutor from Harvard is the worst of all possible choices.

Hey, it took nearly an hour and a half for any substantive criticism in the thread (that didn't boil down to free-floating progressive anxiety). So, I guess that's a good sign.
posted by tivalasvegas at 9:37 AM on March 16, 2016 [2 favorites]

McConnell: Senate won't consider Garland nomination
posted by zarq at 9:38 AM on March 16, 2016

"The wrong time" could as easily be 40 years from now as 15.

What you want is for them to be able to live as long as possible so they can outlast a Republican Presidency and then strategically retire. A longer potential lifespan is better. I know there are ghoulish implications in talking about this stuff, but this is the system. Their lifespan matters.
posted by Drinky Die at 9:39 AM on March 16, 2016 [3 favorites]

I can't imagine Obama would withdraw the nomination in November, and in fact it would be unjust of him to do so. If you have someone who has agreed to deal with the shitstorm for six months, you don't yank the prize from under their feet. Yes, I'd like a more liberal nominee, but not that way.

I would assume that Garland knows the deal and is okay with it, if indeed that is the deal.
posted by jeather at 9:40 AM on March 16, 2016 [4 favorites]

McConnell: Senate won't consider Garland nomination

Like many here, I immediately presumed Garland's nomination was calculated to inflict a political cost on the Republicans should they oppose it. I am surprised that McConnell walked into a trap that obvious, but it makes me wonder if either he sincerely believes that his unprecedented obstruction of a SCOTUS pick is worth any cost, if he doesn't believe any political cost will actually happen -- the so-called "liberal media" might buy his line that it's about principle, after all -- or if he really is that much more afraid of a primary challenge.

I don't know whether the Republicans will eventually cave, although they did on the government shutdowns. But either way, whether Garland is confirmed or not, today's pick may help cost Republicans control of the Senate.
posted by Gelatin at 9:45 AM on March 16, 2016 [5 favorites]

it's not that it's ghoulish, it's the way some people are talking about it as if 63 is 2 weeks away from death. besides, a longer tenure isn't always the best option. 63 is another 10 or 20 years on the bench, and if you're facing one of the most obstructionist congresses in history, and you have faith that the liberal bias of reality will keep trucking on, you put a centrist up who won't be there for 40 years and hope he'll move the center of the court left for a while so another scalia has even less of a chance of being seated. the idea that a 60+ age is automatically a detriment is honestly kind of weird.
posted by nadawi at 9:45 AM on March 16, 2016 [13 favorites]

I think we all know that. I also think it's ageist to talk about someone who's 63 like he's on his way out the door. The average age of a US Senator is 62 after all...

I agree with the point but holding up the US Senate as a model of energy, efficiency and competence is... probably not the best argument
posted by tivalasvegas at 9:46 AM on March 16, 2016 [5 favorites]

Obama's job this election is to be conspicuously reasonable to let the Republicans dig themselves into a hole and remind the American people how terrible the Republican positions actually are.

So, good job.
posted by ckape at 9:47 AM on March 16, 2016 [24 favorites]

and then strategically retire

Ginsburg has not done this.
posted by Rumple at 9:47 AM on March 16, 2016 [4 favorites]

Orrin Hatch speaking now. TLDR: Giant hypocrite.
posted by Drinky Die at 9:49 AM on March 16, 2016

ginsburg shouldn't do that. she should sit on the court as long as she feels able/wants to. she's one of the best we've ever had and she shouldn't vacate just so congress could do this song and dance x2.
posted by nadawi at 9:49 AM on March 16, 2016 [8 favorites]

McConnell: Senate won't consider Garland nomination

Senator McConnell, I cannot wait to vote you out of office.

I am surprised that McConnell walked into a trap that obvious ...

At this point, it's either double-down on the crazy or get booted out as soon as his states' Rs can find a more right (Bevin-like) candidate to challenge him. He's really against the wall.
posted by eclectist at 9:49 AM on March 16, 2016 [1 favorite]

Ginsburg has not done this.

I wouldn't be surprised if Democrats take the White House and Senate, she'll be having her Bon Voyage party within a year.

(Which is the one downside to that scenario—losing the awesomeness of RBG.)
posted by Atom Eyes at 9:52 AM on March 16, 2016 [4 favorites]

Ginsburg has not done this.

And she's made it clear why: “If I resign any time this year, [President Obama] could not successfully appoint anyone I would like to see in the court."

I imagine that if, shudder, the Bad Thing happens in November, RBG'll resign and let Obama make a recess appointment in the interregnum. If it comes to that point, though, we're so fucked anyway -- Trump would probably just ask "how many legions has the Court?", or pack it with fascists, if the Republicans hold the Senate.
posted by tivalasvegas at 9:54 AM on March 16, 2016 [7 favorites]

I’m starting to suspect the GOP plan has always been to stall until June to prevent anyone up for re-election from being primaried, then confirm a nominee well before the general election and hope the public forgets the six-month delay.
posted by nicepersonality at 9:56 AM on March 16, 2016 [11 favorites]

If so, it's a good plan and it'll probably work.
posted by tivalasvegas at 9:58 AM on March 16, 2016 [2 favorites]

I truly hope the Republicans will not confirm him and when they lose in November will get a liberal rammed down their throats.
posted by dances_with_sneetches at 10:00 AM on March 16, 2016 [1 favorite]

...Garland is the same age or younger than four of the remaining five major party presidential candidates.
posted by maryr at 10:01 AM on March 16, 2016 [5 favorites]

stall until June to prevent anyone up for re-election from being primaried,
How would such a plan not add to them being pilloried downballot in Nov?
posted by eclectist at 10:02 AM on March 16, 2016

At this point, it's either double-down on the crazy or get booted out as soon as his states' Rs can find a more right (Bevin-like) candidate to challenge him. He's really against the wall.

That was my speculation, too. Of course, were McConnell to be primaried, the new Senator would not have his seniority or leadership position, and all that that implies. But after the wingnuts got rid of Boehner, I doubt McConnell thinks that fact keeps his seat safe.
posted by Gelatin at 10:02 AM on March 16, 2016 [1 favorite]

Pat Toomey (my senator), "Should Merrick Garland be nominated again by the next president, I would be happy to carefully consider his nomination."

Dude, you've got a 29% approval rating, with any luck you won't be in office next year to consider anyone's nomination.
posted by octothorpe at 10:03 AM on March 16, 2016 [19 favorites]

Mark Kirk (IL) has already capitulated, and hopefully he and Toomey are on the same train out of DC next January.
posted by tivalasvegas at 10:06 AM on March 16, 2016 [4 favorites]

I truly hope the Republicans will not confirm him and when they lose in November will get a liberal rammed down their throats.

The best part is, the Republicans are hammering away so hard at the idea that the American people need to weigh in (via the presidential election), that if the Democratic candidate wins the election, they get to turn that logic right around during the confirmation proceedings.
posted by duffell at 10:07 AM on March 16, 2016 [6 favorites]

My stupid state needs to stop electing idiots like Santorum and Toomey, you know you are going to realize you hate them in a few years!
posted by Drinky Die at 10:08 AM on March 16, 2016 [3 favorites]

...Garland is the same age or younger than four of the remaining five major party presidential candidates.

The President is term limited to eight years and gets to pick the person who takes over if they die ahead of time. Age is less relevant there.
posted by Drinky Die at 10:11 AM on March 16, 2016 [3 favorites]

if you think Obama wishes he could nominate someone more liberal, you are one the 11 dimensional chess is being played against. Obama isn't negotiating with himself, it's you who are negotiating with yourself about Obama/Clinton/etc....
posted by ennui.bz at 10:11 AM on March 16, 2016 [2 favorites]

...Garland is the same age or younger than four of the remaining five major party presidential candidates.

Right, but you can only be president for 8 years. Supreme Court justices are nominated for life. If you nominate a 45 year old, you could get 45 more years out of him or her. If you nominate a 63-year-old, that's very unlikely.
posted by ArbitraryAndCapricious at 10:13 AM on March 16, 2016 [1 favorite]

I actually weighed in pretty hardcore when I voted for the current sitting president.
posted by prefpara at 10:14 AM on March 16, 2016 [35 favorites]

Right, but you can only be president for 8 years. Supreme Court justices are nominated for life. If you nominate a 45 year old, you could get 45 more years out of him or her. If you nominate a 63-year-old, that's very unlikely.

I am failing to see why this matters. The right person can do extraordinary things in 15 years on the bench.
posted by roomthreeseventeen at 10:15 AM on March 16, 2016 [1 favorite]

I am surprised that McConnell walked into a trap that obvious, but it makes me wonder if either he sincerely believes that his unprecedented obstruction of a SCOTUS pick is worth any cost, if he doesn't believe any political cost will actually happen -- the so-called "liberal media" might buy his line that it's about principle, after all -- or if he really is that much more afraid of a primary challenge.

When you're trying to prevent your opponent from doing anything, then any 'win' is a victory.

The whole situation is ridiculous, of course. For all the Senate Republicans talking about the "will of the American people," few of them have ever run for President and certainly none of them have twice won the Presidency. Yet they yammer on and prevent progress.

Which is the truly annoying part. They say they're for rule of law, but they're not (as anyone could tell). They're actions and tactics are dangerous, as they believe they're above the law or feel that the law is wrong and so they're honor bound (in their warped thinking) to do whatever they want to diminish or defeat the law.

Consider this: Abortion is legal in the United States. Yet various laws have been enacted that erode, limit or diminish that Supreme Court mandated right. There's a Jim Crow mindset, wrapped up in states rights and the desire for people to do whatever they fuck they think is right and not have to face any consequences for their actions. That sentiment is deep within the US Congress right now and it's just slowly tearing things apart.
posted by Brandon Blatcher at 10:19 AM on March 16, 2016 [7 favorites]

It matters because 15 years from now there may be a guy as bad as Trump in the White House.
posted by sotonohito at 10:21 AM on March 16, 2016 [5 favorites]

i can't believe people aren't just pointing to civics textbooks in response to "the american people need to weigh in." scotus is purposefully the one branch not voted on - it's on like page 2 of the checks and balances chapter.

Yeah, but...

1. The education system has been thoroughly screwed with.
2. Mistrust in the government has been successfully warped
3. The rule of law doesn't matter if a person or party believes they're in the right, which allows them to subvert or just ignore the law.

Good times, yeah.
posted by Brandon Blatcher at 10:22 AM on March 16, 2016 [6 favorites]

Right, but you can only be president for 8 years.

(derail)

Actually, just short of ten. Become VP, have the President leave offices with just less than two years left in the term, you're president and eligible to be reelected twice.

If you take office with more than two years left in the term, that counts as a full term and you're only eligible to be reelected once. (Section 1, 22nd Amendment.)

A real question is if the interaction between the 22nd Amendment and the 12th would make a former two-term president ineligible for the vice presidency. Clinton is on the record as having asked, and the lawyers she asked believe that it would be unconstitutional for Bill Clinton to be VP, because he's not eligible to become president. The last sentence of the 12th amendment is "But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States" and Bill Clinton is clearly ineligible by the 22nd amendment from being elected president. There is another aspect, though -- he's not eligible to be elected VP, but should the VP leave office, he might be eligible to be *appointed* VP, but in that case, he would still not become president should Hilary leave office -- the question is does that sentence mean "eligible for election?" or "eligible, period?" The sentence implies the latter, but the entire 12th amendment deals with elections, so in context, it's talking about eligibility for election.

And really, with the House what it is, you want to make damn sure your VP is eligible to become the president.

(rerail)
posted by eriko at 10:23 AM on March 16, 2016 [11 favorites]

sotonohito: "It matters because 15 years from now there may be a guy as bad as Trump in the White House"

Or, given demographic shifts, someone far more liberal than Obama, say, someone with a platform similar to that of Bernie Sanders, but younger and more appealing to women and minorities. Democrats have been doing down that path for a while (Clinton doesn't exactly fit, although her being a woman does), and demographically, it should only get more effective over time for them.
posted by Joakim Ziegler at 10:24 AM on March 16, 2016 [3 favorites]

The responses that I see here from some people frankly astonish me — that somehow Obama is playing "11-dimensional chess" (not even hyperbole, someone literally said that) or some kind of political game in nominating a centrist. That somehow we shouldn't be concerned that this person does not have a progressive record and accept that it's all a part of maneuvering to somehow make Republicans "look bad" (as if they aren't already doing just fine on that account by nominating Trump). These are the same people that constantly harp on the Supreme Court being the one and only important branch of government at stake, the reason that progressives must swallow the bitter pill of voting for Hillary, lest they wake up one day to find that abortion is no longer legal. But somehow we should be heartened by the people we put in power playing chicken with Congress by nominating someone who may not share our values?

I think the game theory explanation is equal parts denial and wishful thinking. Since I have every reason to believe that Obama is a smart guy who is approaching this with a clear head, I have an alternate explanation: Garland is someone who Obama would be fine with seeing pass the nomination process and sit on the Court. You don't nominate someone you wouldn't be fundamentally OK with passing, and Obama is apparently using this once-in-a-generation opportunity to swing the court to the left to put up apparently some gutless centrist who may or may not change anything for the better. I am not OK with that, and progressives shouldn't be, either.
posted by indubitable at 10:26 AM on March 16, 2016 [8 favorites]

justices are overwhelmingly more likely to skew left after appointment

There was an article (not the 538 one) that said that was only true for Justices from outside Washington. So someone like Garland wouldn't be expected to.
posted by ChurchHatesTucker at 10:27 AM on March 16, 2016

From Teju Cole on Facebook:

MERRICK GARLAND

*audience looks confused*

*Obama rearranges letters*

*audience gasps*

KENDRICK LAMAR

posted by sallybrown at 10:32 AM on March 16, 2016 [76 favorites]

I think that, based on nothing but my knowledge of how Obama's previous nominees have turned out (and SC nominees' general tendency to shift to the left), I'm not too anxious about trusting him on this, in the absence of any obvious red flags -- which we haven't yet seen.

that was only true for Justices from outside Washington

Is there any reason that this should be particularly salient or predictive? I'm sure I could come up with some evidence that Donald Trump will beat Hillary Clinton based on the fact that no 70-year-old candidate with a Florida mansion has ever lost to a candidate with a middle initial of D, or whatever, but that doesn't make my statistic relevant.
posted by tivalasvegas at 10:35 AM on March 16, 2016 [3 favorites]

I actually looked to see if that worked. Alas, no.
posted by roomthreeseventeen at 10:35 AM on March 16, 2016 [14 favorites]

Or, given demographic shifts, someone far more liberal than Obama

this is possibly the worst argument ever
posted by beerperson at 10:36 AM on March 16, 2016 [3 favorites]

I actually looked to see if that worked. Alas, no.

I did too!

No "G"
posted by zarq at 10:37 AM on March 16, 2016 [1 favorite]

Yeah, Garland is someone Obama would be fine with seeing on the court, that's obvious. And I think progressives should also be fine with that. He would replace Scalia of all people, the right's intellectual (huh) motor on the court. Anyone as centrist as Garland would represent a significant shift of the entire court to the left, and he actually has a chance of being confirmed, which a liberal would not have. This is step one of moving the court to the left, replacing the arch-conservatives (actually, Thomas is further to the right, but less high-profile) with moderates.

There's something of a tradition of not replacing a justice with someone radically different in philosophy, so to continue the shift to the left, you'd replace a center-right justice like Kennedy (whose seat might realistically be up during the next four years) with a center-left justice, and then when, hopefully in the far future, The Notorious RBG's seat needs filling, that's when you go for the hardcore liberal.

It's a gradual shift, but it'll generally go that way. The court can't (and generally won't) be too far out of step with society's opinion, which I think is one reason why justices generally tend to move to the left during their tenure. GWB's appointees, for instance, especially Roberts, have hardly turned out to be as conservative as Scalia and Thomas.
posted by Joakim Ziegler at 10:38 AM on March 16, 2016 [19 favorites]

beerperson: "this is possibly the worst argument ever"

Cite please.
posted by Joakim Ziegler at 10:39 AM on March 16, 2016

It matters because 15 years from now there may be a guy as bad as Trump in the White House.

same could be true in 1 year or 40 years as well. that's not actually a good argument.

Obama is apparently using this once-in-a-generation opportunity to swing the court to the left to put up apparently some gutless centrist who may or may not change anything for the better.

where are you getting gutless from? that's a pretty personal attack unless you're basing that on his rulings or previous vetting. i believe obama would be fine with garland on the court (and i haven't seen anyone argue that obama straight up doesn't want garland) but he also realizes there's an option that would allow him to get a more liberal judge through while also making a big campaign issue for the senate (and the white house). he's willing to take a win whenever it comes and there are lots of opportunities for it to come.
posted by nadawi at 10:39 AM on March 16, 2016 [17 favorites]

Clang Rearm Dirk -- not good on gun control!

A Rand Clerk Grim

UHOH
posted by tivalasvegas at 10:39 AM on March 16, 2016 [5 favorites]

Kendrick Lamarg.

It works. The 'g' is silent.
posted by imnotasquirrel at 10:42 AM on March 16, 2016 [5 favorites]

Too many k's.
posted by roomthreeseventeen at 10:44 AM on March 16, 2016 [5 favorites]

scotus is purposefully the one branch not voted on

My personal take: when the partitions of government were being originally come up with, I don't think the Founders envisioned such a partisan environment. SCOTUS judges were supposed to interpret the constitution based on the law, not based on their partisan leanings or their inner conscience. We've collectively come to understand that this is impossible, and so we will have "liberal" judges or "conservative" judges. If outright partisan judges are to be the case, then this should be answerable to which direction the American people are leaning with their choice of president. What's apparently up for debate is whether this partisan-leaning-choice extends to the entire four years of the Presidency (as I believe it should) or if, for some reason, only the first three, which is how Congress seems to be leaning.
posted by permiechickie at 10:47 AM on March 16, 2016

Cite please.

cf. Wainwright, Bethesda. 'Stupid Things You Said Online.' Dumb Arguments Digest Aug. 2015: 243-48. Print.
posted by beerperson at 10:47 AM on March 16, 2016 [32 favorites]

Since I have every reason to believe that Obama is a smart guy who is approaching this with a clear head, I have an alternate explanation: Garland is someone who Obama would be fine with seeing pass the nomination process and sit on the Court.

I agree. Garland is also someone who has amassed Republican endorsements in the past, has agreed to endure either the possibility of his nomination going nowhere in the Senate or enduring a Judicial Committee grilling -- which in itself would be seen as a loss by the Republicans' loony base -- only to be voted down, and is someone who, as others have pointed out, just might yet get confirmed. I am curious who else you propose meets all those criteria.

You don't nominate someone you wouldn't be fundamentally OK with passing, and Obama is apparently using this once-in-a-generation opportunity to swing the court to the left to put up apparently some gutless centrist who may or may not change anything for the better.

I would suggest that even a "gutless centrist" -- which Garland is not -- replacing Antonin Scalia already moves the court to the left -- and reduces the importance of Anthony Kennedy's swing vote, which is almost as good -- and so already changes things for the better.

The hard reality is that, in defiance of centuries of tradition, the Republicans are on record, today, as loudly proclaiming that they won't even hold hearings for this nominee. And short of political pressure, there's exactly nothing Obama can do to make them.

As for making the Republicans look bad, yeah, Trump is doing that, but it helps a whole bunch to have a Washington establishment that would like to pretend that Trump isn't the result of their own decades of demagoguery revealed as totally in thrall to the wingnuts he's whipping up into a frenzy.

I agree with those who say that even if Garland isn't the second coming of Che Guevera, he's exactly the right pick for the current circumstance.
posted by Gelatin at 10:48 AM on March 16, 2016 [17 favorites]

I think McConnell is just riding out the year. He has read the tea leaves, doesn't care about the damage done to the GOP. I mean look at Trump, just look at him. Can anything the Majority does in the Senate be worse?

Whether the Senate is majority Dem. or Repub. I'm willing to bet that the filibuster is toast next session just so the business of governance can get done regardless of who will be kicking and screaming.

I think McConnell realizes this and is willing to wait until responsibility can be abdicated to the inevitable tide of politics that will wash away this particularly vile episode of obstruction.
posted by Max Power at 10:48 AM on March 16, 2016

I'm reading on some conservative sites comments about Garland being centre-right on many issues, except for gun rights, where he's squarely left (at least in the opinion of the conservative commenters). A lot of them are seeing this as the biggest gift they could expect from Obama, and hoping for a quick confirmation before Clinton (who they expect wins over Trump easily) gets to nominate someone worse.

Not saying it's right or representative, but it is an interesting view.
posted by GhostintheMachine at 10:48 AM on March 16, 2016 [3 favorites]

To me, the question that will determine the nomination is would the current republicans want Garland or whomever either Trump or Clinton nominates. Seems to me that they trust neither of the likely candidates and would be better off approving of Garland if they are concerned with the next potential nominee. Rhetoric is great when pandering to the base, but ultimately they will need to be somewhat pragmatic about this.
posted by AugustWest at 10:48 AM on March 16, 2016

if, for some reason, only the first three, which is how Congress seems to be leaning.

where we all know that "some reason" is that obama is black and they have never seen him as a legitimate president.
posted by nadawi at 10:49 AM on March 16, 2016 [13 favorites]

KENDRICG LAMARR

closeenough.jpg
posted by Rock Steady at 10:51 AM on March 16, 2016 [13 favorites]

Nadawi, that's certainly possible, but I believe they'd do the same thing if Hillary had won in 2008, or really any Democrat. The partisanship of our political system is making the running of the government (as designed) completely impossible. How long until a Congress controlled by one party simply decides to not approve ANY Supreme Court nominees if the president is from the opposite party?
posted by permiechickie at 10:53 AM on March 16, 2016 [3 favorites]

You know, I'm really tired of this centrist=gutless claim.

Supra. Especially considering that it's where the bulk of the country is, by definition. Administering justice from a central position, making accommodations from both sides, isn't necessarily a bad thing, or an easy one. (There are exceptions, of course.)
posted by Capt. Renault at 10:55 AM on March 16, 2016 [4 favorites]

<anagramderail>My heart breaks that it's a Lil Wayne line and not a Kendrick Lamar line so I can't just drop in "real g's move in silence like lasagna".</anagramderail>
posted by Kattullus at 10:56 AM on March 16, 2016 [26 favorites]

I mean look at Trump, just look at him. Can anything the Majority does in the Senate be worse?

From the Republican perspective, yes. The Republicans are defending enough seats that it's in play this year, and some of those are in places like Illinois, New Hampshire, Pennsylvania and Florida where a Republican incumbent could lose, especially in a time of high Democratic turnout associated with the Presidential race.

Senate Republicans want to be able to appeal to moderate voters by pretending they aren't with Trump. Doing the bidding of the Tea Party crowd and denying the American people the right to weigh in -- since they already voted for Barack Obama -- are the last things they need to be perceived as doing.
posted by Gelatin at 10:58 AM on March 16, 2016 [1 favorite]

Why Merrick Garland Was a Brilliant Tactical Move: When he wants to play the game, President Obama has game.
posted by homunculus at 10:58 AM on March 16, 2016 [5 favorites]

I would suggest that even a "gutless centrist" -- which Garland is not -- replacing Antonin Scalia already moves the court to the left -- and reduces the importance of Anthony Kennedy's swing vote, which is almost as good -- and so already changes things for the better.

This argument and others like it that have been put forth are perplexing, because they seem to treat the votes on the Supreme Court as some kind of 1-dimensional continuum. And if it were, and you take the average of wherever everyone sits on this imaginary left-right continuum, you could look at it and say, "Ah ha! The average has shifted to the left, and therefore this is a good move". But votes are not a continuum, and they don't use averages. You're replacing a conservative Justice and there are no other conservative Justices likely to retire in the next four years. What I see as likely is that this would just add another Anthony Kennedy, another swing vote where you have to hope he got up on the right side of the bed that morning before he splits the baby and decides on whether you should have any of a wide range of fundamental rights. That does not seem like an improvement to me.
posted by indubitable at 10:58 AM on March 16, 2016 [3 favorites]

Let’s dispel once and for all with this fiction that Barack Obama doesn’t know what he’s doing. He knows exactly what he’s doing.
posted by General Malaise at 10:58 AM on March 16, 2016 [22 favorites]

It matters because 15 years from now there may be a guy as bad as Trump in the White House

Or it could be Malia Obama. Or Kendrick Lamarr. Or the wrong lizard. Or the sun may consume the planet in a fiery supernova.

On net, I'd we're probably not going to get a lot done by speculating over the electoral whims of the nation in fifteen years' time, and we should appoint a goddamn justice.
posted by Mayor West at 10:58 AM on March 16, 2016 [6 favorites]

I think we all know that. I also think it's ageist to talk about someone who's 63 like he's on his way out the door. The average age of a US Senator is 62 after all...

To really be apples to apples you need to compare the average age of a US Senator when they were voted into office, though of course the fact that they get re-elected rather than keep on keepin' on like a SC judge makes that a hint different. But if you consider that you'd still have to subtract 3 from that 62.

The thing I think is kinda crap about this age talk is that it all seems to expect nominees to die on the bench. I suppose you can consider that part of the self-selection process and maybe you only get nominated if you are okay with working forever - and come people certainly want to - but man to my ears that sounds fucking awful. I want to retire someday. Fuck, I want to retire today... The eternal job as a presumption seems sorta unfair.
posted by phearlez at 10:58 AM on March 16, 2016 [1 favorite]

The partisanship of our political system is making the running of the government (as designed) completely impossible.

Please not the "both parties are increasingly polarized" line. There is one party doing this. Not two.

How long until a Congress controlled by one party simply decides to not approve ANY Supreme Court nominees if the president is from the opposite party?

No. Don't point at the single greatest dereliction of duty by an entire party in the legislature, ever, in history, and say "yep, the Dems are just as bad, they'll be doing the same thing any day now."

Maybe we'll get there someday. I hope not. But right now this is a uniquely crazy Republican moment.
posted by gurple at 11:00 AM on March 16, 2016 [24 favorites]

[n]adawi, that's certainly possible, but I believe they'd do the same thing if Hillary had won in 2008, or really any Democrat.

i believe out and out racism is a big reason for how much obstruction congress has been able to get away with. i believe sexism would have allowed/will allow them to do it with hilliary. i don't think it's just partisan politics at work.
posted by nadawi at 11:00 AM on March 16, 2016 [23 favorites]

But I do want to quickly talk about the political aspect of this. Merrick Garland was the one who prosecuted right-wing extremists in Oklahoma City. You heard him mention this. This is Obama’s effort to look bipartisan and reasonable. He knows that the right is divided. He’s capitalizing on that division. He knows that he is going to call them ‘allegedly violent’ Trump supporters — [they’re] going to stand up and he’s gonna say, “You’re blocking him because this is payback because he prosecuted the Oklahoma City Bombers!” He knows that that attack is coming. I believe it is a political trap.

wat
posted by Drinky Die at 11:00 AM on March 16, 2016 [2 favorites]

How long until a Congress controlled by one party simply decides to not approve ANY Supreme Court nominees if the president is from the opposite party?

Uh, negative twenty-six days, I believe.
posted by tivalasvegas at 11:02 AM on March 16, 2016 [35 favorites]

I can't believe people are uncritically claiming that Garland will be to the left of Scalia. He is clearly to the right of Scalia on the rights of criminal suspects and defendants:

On the appeals court, Garland has been a moderate liberal, with a definite pro-prosecution bent in criminal cases. Indeed, his views in the area of criminal law are considerably more conservative than those of the man he would replace, Justice Antonin Scalia. [NPR]

Now, maybe you're happy to toss criminal suspects under the bus in exchange for better rulings on, say, political speech, but at least have the guts to come out and make that argument instead of pushing this Pollyanna narrative where Garland is somehow consistently to the left of Scalia.
posted by enn at 11:02 AM on March 16, 2016 [9 favorites]

I'm reading on some conservative sites comments about Garland being centre-right on many issues, except for gun rights, where he's squarely left (at least in the opinion of the conservative commenters). A lot of them are seeing this as the biggest gift they could expect from Obama, and hoping for a quick confirmation before Clinton (who they expect wins over Trump easily) gets to nominate someone worse.

Pro life sites are predictably describing him as a liberal. LifeNews is currently running the following headline: "Pro-Life Groups on Merrick Garland: Anyone Obama Nominates Will Uphold Abortion on Demand"
posted by zarq at 11:03 AM on March 16, 2016

Pro life sites are predictably describing him as a liberal.

My understanding is that all justices are given a secret number which represents their position on the political spectrum; when any case comes to the Supreme Court, each justice has to peek at their secret number which tells them how they decide.

Garland is rumored to be a two. A TWO.
posted by beerperson at 11:07 AM on March 16, 2016 [19 favorites]

What I see as likely is that this would just add another Anthony Kennedy, another swing vote where you have to hope he got up on the right side of the bed that morning before he splits the baby and decides on whether you should have any of a wide range of fundamental rights.

You're correct that Supreme Court votes are not on a one-dimensional contiunuum; for example, Antonin Scalia was occasionally sympathetic to defendants on Fourth Amendment grounds. It's possible that Garland will be less so; it's also almost certain that, on the balance, and on issues such as corporate personhood, voting rights, abortion rights, affirmative action and a host of others, he's almost certain to lean left of Scalia. What, exactly, in his record makes a prediction of his being another Kennedy at all likely?

And again, who else could Obama have nominated that would have met the criteria I mentioned earlier? I genuinely wonder who could have passed some kind of lefty purity test and also be confirmed by the current Senate.
posted by Gelatin at 11:10 AM on March 16, 2016 [2 favorites]

Garland seems fine. I have no idea who the mythical candyland Santa Clause ultra-progressive judge is that Mefites want appointed. The issue is not that Garland is in any way bad but that the Repubs are obstructionists. Listening to Obama and Garland speak this morning and the NPR pundits, Garland sounds like a solid choice. I wonder what hes-a-snake-person nonsense people will try to dig up on him.
posted by GuyZero at 11:12 AM on March 16, 2016 [5 favorites]

You don't nominate someone you wouldn't be fundamentally OK with passing, and Obama is apparently using this once-in-a-generation opportunity to swing the court to the left to put up apparently some gutless centrist who may or may not change anything for the better. I am not OK with that, and progressives shouldn't be, either.

Obama does not only represent the progressives, he represents the whole country. This is also reflected in the Senate. He does not get to do this himself; the process is designed to be an exercise in compromise, to force the parties to act at least more in line with the country. He does not get things entirely his way, nor does the senate. I am a progressive, but I recognize that politics needs balance, and I think this might be a good move. The only question about it is, if you think Hillary might win and be the next president, could/would she put someone more progressive in? I think that is the only other viable option, and it isn't clear she could have much more success, unless the senate is going to have a big upset.
posted by Bovine Love at 11:12 AM on March 16, 2016 [12 favorites]

I genuinely wonder who could have passed some kind of lefty purity test and also be confirmed by the current Senate.

No one. Which is why the choices come down to Obama possibly filling the seat with someone like Garland, or leaving eight people on the bench for more than a year. The idea that he could somehow get a genuine liberal on the bench is baseless. That's just not an option right now.
posted by Pater Aletheias at 11:13 AM on March 16, 2016 [8 favorites]

GuyZero: I wonder what hes-a-snake-person nonsense people will try to dig up on him.

I know that it's kinda ridiculous to go after him for his age, but I think it's taking it a bit far to say he's a millennial.
posted by Kattullus at 11:13 AM on March 16, 2016 [8 favorites]

The Constitution does not require that a justice be a lawyer.

So instead of yet another Harvard/Yale law school graduate, why not save at least one chair for someone outside the legal profession? An historian, say. Or a novelist. A doctor, or a soldier.

To bring a different perspective to matters under adjudication.
posted by BWA at 11:13 AM on March 16, 2016 [1 favorite]

hes-a-snake-person

Wait, I thought he was an Old?
posted by tivalasvegas at 11:13 AM on March 16, 2016

Apparently Garland was involved from the get-go in the politically- and racially-motivated entrapment of Marion Barry. A real liberal lion, this guy.
posted by enn at 11:15 AM on March 16, 2016

The Constitution does not require that a justice be a lawyer.

Same for Congress. We elect a bunch of lawyers and then are shock-outraged when they rules-lawyer everything to hell and gone.
posted by tivalasvegas at 11:16 AM on March 16, 2016

The Constitution does not require that a justice be a lawyer.

This will never happen but I would chuckle at the first person to proclaim "he/she will run the court like a business!"
posted by cmfletcher at 11:16 AM on March 16, 2016 [12 favorites]

Mitch McConnell is calling President Obama a lame duck when the next president's inauguration is still 10 MONTHS from now. Drives me insane.
posted by trillian at 11:16 AM on March 16, 2016 [7 favorites]

Sorry, I meant lizard person, not snake person.

It's hard to keep reptile-Americans straight these days.
posted by GuyZero at 11:17 AM on March 16, 2016 [15 favorites]

The Constitution does not require that a justice be a lawyer.

There's nothing in the rules that says a dog can't play basketball.
posted by beerperson at 11:19 AM on March 16, 2016 [57 favorites]

More than a dozen Supreme Court lawyers are pressing the Senate to take up President Obama's pick to succeed the late Justice Antonin Scalia.

In a letter sent Tuesday to Majority Leader Mitch McConnell (R-Ky.) and Minority Leader Harry Reid (D-Nev.), 16 lawyers who argue cases before the court say that allowing Scalia's seat to remain empty would undermine the court's effectiveness.

"We believe it is imperative that the President expeditiously name a nominee, and that the Senate expeditiously consider and vote on that nominee," they wrote. "It would be harmful to our nation for so many cases to be heard by only eight Justices, inviting split decisions that do not resolve important legal questions."

posted by zarq at 11:19 AM on March 16, 2016 [2 favorites]

Mitch McConnell is calling President Obama a lame duck when the next president's inauguration is still 10 MONTHS from now.

Again, slight hats off to the Republicans. They've ginned up public will so much that some people actually see this as a great move.

Now let's burn the current Republican party to the ground, legislatively and politically.
posted by Brandon Blatcher at 11:19 AM on March 16, 2016 [1 favorite]

Developing - Now four Republican senators say they will meet with Judge Garland:

Ayotte, Collins, Flake, Portman
posted by DynamiteToast at 11:19 AM on March 16, 2016 [1 favorite]

Mitch McConnell is calling President Obama a lame duck when the next president's inauguration is still 10 MONTHS from now.

When Republicans repeat a line like that or "let the American people weigh in," you can bet that Frank Luntz or someone similar found it focus tested well.

(The sad thing is that our political press is at least supposed to be smart enough to realize that Obama is no lame duck, no President in the history of the Republic has been flatly denied any SCOTUS pick at all and we already had our say by electing Obama...)
posted by Gelatin at 11:20 AM on March 16, 2016 [3 favorites]

I genuinely wonder who could have passed some kind of lefty purity test and also be confirmed by the current Senate.

But note that no one who fails the lefty purity test can also be confirmed by the current Senate.

Why are we, yet again, indulging in this cult of action for actions' sake? The idea that we must do **SOMETHING** so therefore since the only action the Republicans will permit is right wing we should do something right wing is absurd.

Nominate a good candidate. The Republicans will obstruct absolutely anyone Obama nominates, they said it and I think they were engaging in a rare moment of total honesty when they said it. So nominate a good candidate, not some namby pampy middle of the road person who may well turn out to be another Kennedy.

If Trump wins in November the Court is going to be stacked with justices who will roll back all the progress we've made since Reconstruction anyway. There's no way that Beyer and Ginsburg will manage to stay on the Court for another 8 years no matter how determined they are to try.

So nominate a good candidate. If by some miracle they get through than yay, and if no we're no worse off than before.
posted by sotonohito at 11:20 AM on March 16, 2016 [1 favorite]

16 lawyers who argue cases before the court say that allowing Scalia's seat to remain empty would undermine the court's effectiveness.

Not sure where they got that idea. The court has already been vastly more effective with Scalia's seat being empty. I mean without even voting on anything.

Though I was amused to imagine the blood draining out of Clarence Thomas's face when he realized he didn't have Scalia to do all the heavy lifting of maintaining the right-wing agenda anymore and might actually need to start asking questions himself.
posted by Naberius at 11:21 AM on March 16, 2016 [1 favorite]

So instead of yet another Harvard/Yale law school graduate, why not save at least one chair for someone outside the legal profession? An historian, say. Or a novelist. A doctor, or a soldier.

That's a pretty terrible idea. Outside of a few social issue and high profile constitutional cases, a lot of what SCOTUS does is resolve doctrinal splits between the Circuits. Do you really want someone with no legal training deciding questions like: "Whether a federal court of appeals has jurisdiction to review an order denying class certification after the named plaintiffs voluntarily dismiss their claims with prejudice"?
posted by T.D. Strange at 11:21 AM on March 16, 2016 [23 favorites]

Ayotte, Collins, Flake, Portman

Senators either in highly contested elections, or open aspirations to run for governor.
posted by T.D. Strange at 11:24 AM on March 16, 2016 [2 favorites]

Apparently during the press conference, Judge Garland mentioned that his daughter had gone hiking and was out of range of cell service. She didn't know her father had been nominated. :)
posted by zarq at 11:24 AM on March 16, 2016 [1 favorite]

Apparently Garland was involved from the get-go in the politically- and racially-motivated entrapment of Marion Barry. A real liberal lion, this guy.

Wait, the entrapment of getting someone to smoke crack cocaine on camera? I'd love some links about this entrapment; it's the first I've heard of it.
posted by el io at 11:24 AM on March 16, 2016 [8 favorites]

Ayotte, Collins, Flake, Portman

Senators either in highly contested elections, or open aspirations to run for governor.

Now we just need to keep on the pressure until one or more of them calls for an up or down vote.

What I still don't understand is why McConnell didn't just slow walk this and then vote down the nominee?
posted by leotrotsky at 11:25 AM on March 16, 2016 [2 favorites]

But note that no one who fails the lefty purity test can also be confirmed by the current Senate.

But that isn't necessarily true -- Garland is centrist enough to have already picked up endorsements by a number of Republican Senators for his earlier judgeship. And he's centrist enough that embattled purple-state senators like Ayotte just might decide it isn't in their interest to blick him.
posted by Gelatin at 11:25 AM on March 16, 2016

I do not believe Obama would withdraw his nominees name under any circumstance.

This is his only opportunity to appoint (and have confirmed) a Supreme court justice. A big deal for a president's legacy.
posted by notreally at 11:25 AM on March 16, 2016 [1 favorite]

Why are we, yet again, indulging in this cult of action for actions' sake? The idea that we must do **SOMETHING** so therefore since the only action the Republicans will permit is right wing we should do something right wing is absurd.

Calling Garland right-wing is nonsensical, and you need look no farther than the guy he's replacing to see why. I get that he's not lefty enough for some - in my heart of hearts, I want someone better, too - but he'll be light-years better than Scalia and his nomination can cause electoral trouble for the Republicans in an election cycle that scares the hell out of a lot of people, myself among them.
posted by ColdOfTheIsleOfMan at 11:27 AM on March 16, 2016 [2 favorites]

This is his only opportunity to appoint (and have confirmed) a Supreme court justice. A big deal for a president's legacy.

You mean, besides the last two?
posted by leotrotsky at 11:27 AM on March 16, 2016 [21 favorites]

But note that no one who fails the lefty purity test can also be confirmed by the current Senate.

that actually hasn't been proven yet. and even if it is proven - i get that you don't like this guy (have you actually explained why without insults about centrism?) - but your unicorn judge doesn't give as much political posturing as this guy does. if you're right and no one gets confirmed, a centrist is the best option to make the republicans look as bad as possible.
posted by nadawi at 11:27 AM on March 16, 2016 [7 favorites]

I have no idea who the mythical candyland Santa Clause ultra-progressive judge is that Mefites want appointed.

The Merrick Garland appointment is absolutely a missed opportunity - “Progressives could have had three people on the ballot come November—the nominee, VP, and the SCOTUS pick who never got a vote. If that person had looked in any way like the group of voters who form what's become known as "the Obama coalition," she or he could have symbolized the very future of our nation that Republicans are actively working so hard to deny.”
posted by T.D. Strange at 11:28 AM on March 16, 2016 [5 favorites]

Just take a quick glance and compare the rough outlines:

Judge Garland
Judy Garland

I think I'm going to be having quite a few "Wait, what?!? Who???" moments while this issue stays in the headlines.
posted by benito.strauss at 11:29 AM on March 16, 2016 [8 favorites]

This is his only opportunity to appoint (and have confirmed) a Supreme court justice

posted by notreally

I see what you did there
posted by tivalasvegas at 11:29 AM on March 16, 2016 [8 favorites]

So instead of yet another Harvard/Yale law school graduate, why not save at least one chair for someone outside the legal profession? An historian, say. Or a novelist. A doctor, or a soldier.

Unless said person also has a JD, and even then, that is a terrible idea that plays into the bizarre anti-intellectual belief that any rando's opinion is equivalent to the opinion of a well-educated expert with years of experience in their field. Sure, get more diversity of life experience on the bench, that's important. But get that diversity within the legal profession. This is the literal highest court in the land we're talking about here. You need a judge to do a judge's job.
posted by yasaman at 11:30 AM on March 16, 2016 [23 favorites]

It's worth remembering that Garland may not have been Obama's top pick, since it's entirely likely that he asked someone else and they said "no chance in hell am I letting myself get dragged into this mess."
posted by showbiz_liz at 11:30 AM on March 16, 2016 [9 favorites]

This is his only opportunity to appoint (and have confirmed) a Supreme court justice. A big deal for a president's legacy.
posted by notreally

Perhaps the most eponysterical moment I've seen yet!

(He placed Kagan and Sotomayor on the bench.)
posted by kate blank at 11:31 AM on March 16, 2016 [1 favorite]

if you're right and no one gets confirmed, a centrist is the best option to make the republicans look as bad as possible.

Exactly -- and, let's not forget, any nominee must be willing to be be potentially a sacrificial lamb, and have their one shot at the SCOTUS amount to nothing. I doubt the list is long of people willing to throw away their shot like that.

As long as folks are griping about Garland, let's hear some of their nominees and see if they fit the criteria I spelled out earlier.
posted by Gelatin at 11:31 AM on March 16, 2016 [3 favorites]

if you're right and no one gets confirmed, a centrist is the best option to make the republicans look as bad as possible.

Yeah. It's not 11-dimensional chess so much as... like, regular 2-dimensional chess.
posted by tivalasvegas at 11:31 AM on March 16, 2016 [2 favorites]

Judge Garland

Judy Garland

Judge Judy

*ominous music*
posted by The Bellman at 11:32 AM on March 16, 2016 [27 favorites]

> Apparently during the press conference, Judge Garland mentioned that his daughter had gone hiking and was out of range of cell service. She didn't know her father had been nominated.

I hope he totally dads it: "You saw a deer on your hike? That's nice. Me? No, nothing much, really. Oh, I did get nominated for the Supreme Court but other than that, no, not much. Now tell me more about the deer."
posted by benito.strauss at 11:33 AM on March 16, 2016 [42 favorites]

And again, who else could Obama have nominated that would have met the criteria I mentioned earlier?

Rack your brain for any of the dozens of more liberal judges that sit on Federal appeals courts. They exist. If they are genuinely qualified and get shot down by the Senate on political grounds, then you chalk it up as a loss and try again or wait for Hillary to put someone up. The longer that position stays vacant for nakedly political reasons, the worse it looks for the Senate.

I genuinely wonder who could have passed some kind of lefty purity test and also be confirmed by the current Senate.

A "purity test" would be objecting on one point to someone who otherwise shares your values. Nobody here has proposed a purity test, I simply object to nominating someone who is clearly center-right.

Obama does not only represent the progressives, he represents the whole country.

This is nonsense. Do you think that George W. Bush was also representing "the whole country" when he put up extremists like Alito and Roberts? I don't; he had a political agenda and he was putting it into action. I see no reason for progressives to hamstring themselves like this when nobody else would.
posted by indubitable at 11:35 AM on March 16, 2016 [5 favorites]

The Constitution does not require that a justice be a lawyer.

True. But the Supreme Court only deals with cases which are the most 'sick'. Healthy interactions of law don't make it to Court, let alone the highest one. If a case makes it to the Supreme Court, it's because there's something really, really wrong with it.

Just as you don't necessarily need a surgeon to do your surgery, it's still a pretty good idea to have someone who at least knows what they're looking at when they pop the hood.

Diversity on the court -- absolutely. A greater range of lawyers on the court, to get fuller insight -- yes. But a non-specialist dealing with the rarest of specialist cases -- probably not a hot idea.
posted by Capt. Renault at 11:36 AM on March 16, 2016

Judge Judy Garland could be one of those before and after Jeopardy answers.
posted by roomthreeseventeen at 11:36 AM on March 16, 2016 [10 favorites]

[From the "missed opportunity" article]

“Progressives could have had three people on the ballot come November—the nominee, VP, and the SCOTUS pick who never got a vote. If that person had looked in any way like the group of voters who form what's become known as "the Obama coalition," she or he could have symbolized the very future of our nation that Republicans are actively working so hard to deny.”

Can anyone parse this sentence for me? I can't for the life of me figure out what the author is trying to say.
posted by Atom Eyes at 11:36 AM on March 16, 2016 [2 favorites]

By the way, if the Republicans do indeed refuse to hold hearings, Senate Democrats should go ahead and hold shadow hearings. They may not help get Garland confirmed, but they'd be the kind of process theater the Washington press loves, and it'll keep the issue in the news as Republicans try to explain their opposition to such a moderate candidate while Democrats keep saying the American people did have a voice when they gave Obama the Constitutional power to nominate judges. Hold McConnell's feet to the fire.
posted by Gelatin at 11:37 AM on March 16, 2016 [11 favorites]

Can anyone parse this sentence for me? I can't for the life of me figure out what the author is trying to say.

"Obama could have nominated someone inspiring, who would drive youth turnout in the face of Republican opposition to their vision for the future. Instead we got this old white dude. Another old white dude."
posted by T.D. Strange at 11:40 AM on March 16, 2016 [4 favorites]

I think we should be a little more mature and through when talking about Judge Garland than just calling him an "old white dude."
posted by roomthreeseventeen at 11:42 AM on March 16, 2016 [6 favorites]

> Another old white dude.

Y'know, like Bernie Sanders.
posted by benito.strauss at 11:44 AM on March 16, 2016 [21 favorites]

I'm pretty politically liberal, probably left of center even when looking at Metafilter membership, but I still think it would wrong for Obama to ignore the "advise and consent" role of the Senate--just as wrong as it is is for McConnell to keep ignoring the fact that there isn't an expiration date on the president's nominating role. This was never intended to be a decision that was made by the president alone, and by choosing someone that the senate can live with, he is doing exactly the right thing, regardless of his motivations. If you want a purely liberal justice, work harder for a majority liberal senate. There are two steps to this process.
posted by Pater Aletheias at 11:44 AM on March 16, 2016 [32 favorites]

Rack your brain for any of the dozens of more liberal judges that sit on Federal appeals courts. They exist.

Great! So name one.

And don't forget, the "dozens of more liberal judges that sit on Federal appeals courts" also have to be at least minimally acceptable to the Republican Senate -- they simply do, until the Democrats take it back -- and also be willing to potentially have their one chance of nomination to the SCOTUS torpedoed without so much as a hearing.

So who would you suggest?
posted by Gelatin at 11:45 AM on March 16, 2016 [5 favorites]

Thanks, T.D. Strange. The "Progressives could have had three people on the ballot come November—the nominee, VP, and the SCOTUS pick who never got a vote" thing still confuses me, though. I guess they're speaking figuratively?
posted by Atom Eyes at 11:46 AM on March 16, 2016 [2 favorites]

another reason for obama to pick someone in their 60s - they're more likely to say yes because they probably thought their chance at a seat had passed them by. because of how acrimonious this is bound to be, there's no reason for an awesome, probably gonna be asked at some point, 40 year old to go through this right now.
posted by nadawi at 11:49 AM on March 16, 2016 [6 favorites]

I simply object to nominating someone who is clearly center-right.

I'm interested in this characterization. I read something today which put him squarely in an ideological cluster with the current left wing of the court, between Kagan and Ginsburg. However, I recognize that there are a lot of different axes here and that it's never a good idea to put an individual who has a wide variety of views on different issues that may come before the court on a simple line. Are there specific opinions of Garland's that you would point to that would put him out of step with Kagan and Ginsburg?
posted by Copronymus at 11:54 AM on March 16, 2016 [2 favorites]

So instead of yet another Harvard/Yale law school graduate, why not save at least one chair for someone outside the legal profession? An historian, say. Or a novelist. A doctor, or a soldier.

Am I the only one who read this as sarcasm? Lots of people like to disclaim the lack of "diversity" on the court because Justices are only coming from Harvard and Yale, so I took this as mocking that sentiment than the more absurd position, which I'm sure a number of "liberals" believe, that we should fill the court with good ol' Joe the Union Plumber.
posted by Dalby at 11:58 AM on March 16, 2016

It's worth noting that in their obstructionism, Senate Republicans are gambling that a Republican may win the election. But I don't think it's likely, and so, I suspect, would a number of liberal jurists (many of whom already hold lifetime tenure on Federal courts). If it were me, I might not be willing to throw away my shot by allowing myself to be nominated for a vacancy that, will-they-or-nil-they, the Republicans have promised to block, rather than one under a Democratic president next year.

(Though I'm genuinely amused to imagine the excuses McConnell will try when that happens.)

We don't know, and will likely never know, whether Obama already asked one or several more liberal jurists, who thanked him for the consideration but would prefer to wait.
posted by Gelatin at 12:04 PM on March 16, 2016 [1 favorite]

Lots of Asian-American orgs and mobilizers were very excited by the prospect of Sri Srinivasan's nomination and, especially on the left, the potential for a block of his nomination to drive AAPI donation and engagement, which is historically fairly low compared to wealth and population. In that sense, this is a missed opportunity to generate a significant and generational attachment in that voter base. Indian-Americans in particular tend to skew somewhat conservative, but a Democratic President putting up Vivek Murthy and Sri Srinivasan for the highest public positions in their respective fields would probably have won a few decades of party donations from one of the fastest-growing sources of wealth in the country. So while I have no particular personal reason to dislike Merrick Garland (or, in fact, to politically prefer Sri Srinivasan, who is as centrist and corporate as any likely nominee), from my perspective as a member of the AAPI community and an Indian-American, Obama left a lot of money and votes on the table this round. I'm not saying that is or will turn out to be a mistake, but it is an opportunity cost of some significance.
posted by Errant at 12:07 PM on March 16, 2016 [6 favorites]

centrist

Maybe Obama has done a lot more vetting of his nominee than most of us, has actually spoken with him, and has a pretty good idea of where Garland stands specifically on issues that the Obama administration believes are likely to be important in the next 5/10/20 years, and is perfectly happy with it.
posted by HighLife at 12:07 PM on March 16, 2016 [9 favorites]

My guess is that Obama knows Garland would be a great improvement from a liberal point of view when compared to Scalia but that he doesn't actually expect Garland to be confirmed. If he is, well, that's fine. The Court will shift leftward. But it's more a poke in the eye with a stick at the Republicans with the real nominee coming from President Clinton the Second.
posted by Justinian at 12:09 PM on March 16, 2016 [4 favorites]

My guess is that Obama knows Garland would be a great improvement from a liberal point of view when compared to Scalia but that he doesn't actually expect Garland to be confirmed.

In which case it makes sense to keep the Democrats' powder dry when it comes to jurists like Srinivasan, whose name I have heard suggested for a SCOTUS position before.

Shame on the Republicans for it, but any Obama nominee may simply be doomed. Obama would be a fool not to take that fact into account, and so would any potential nominee (like Srinivasan, for example). Given that we seem to have a tradition of having only one bite at the apple as far as SCOTUS nominations go, I can understand why everyone involved on the Democrat side may well want to give this round a miss.
posted by Gelatin at 12:15 PM on March 16, 2016 [3 favorites]

I actually think that there's a good chance that Garland will be confirmed. The Republicans have kind of painted themselves into a corner, and they'll have to figure out a way to do it and save face, but I don't think they have any better options. There's a good chance that the election will result in a Democratic President and Senate, and then they're screwed. There's a less good chance that the election will result in a President Trump, and I don't think they're any less screwed if that happens. I think they may come to the conclusion that Garland is the best they're going to do.

He wouldn't have been my first choice, and I'm disappointed that it's not someone I'm actually excited about, but I think I can live with him, based on the little bit I know about him now.

Is Srinivasan any better? I don't get the sense that he's a giant lefty either.
posted by ArbitraryAndCapricious at 12:19 PM on March 16, 2016 [1 favorite]

indubitable: "What I see as likely is that this would just add another Anthony Kennedy, another swing vote where you have to hope he got up on the right side of the bed that morning before he splits the baby and decides on whether you should have any of a wide range of fundamental rights. That does not seem like an improvement to me."

This doesn't seem like an improvement over a guy who consistently voted against those fundamental rights for a huge number of people over almost 30 years? It does to me, you'd have two chances to swing things to the left instead of one.

Also, the most likely vacant seats over the next 4 years are probably Ginsburg's and Kennedy's, and maybe Breyer's. If there's a democratic president, which looks likely, Ginsburg and Breyer will not be replaced with someone more to the right than they are, and Kennedy would likely be replaced with someone at least somewhat further to the left. Your net shift would be one less conservative justice, one more liberal justice, which would greatly reduce the influence of the swing vote, and Garland is likely to the left of Kennedy anyway.
posted by Joakim Ziegler at 12:21 PM on March 16, 2016 [3 favorites]

from my perspective as a member of the AAPI community and an Indian-American, Obama left a lot of money and votes on the table this round

This assumes Srinivasan wanted to be nominated at this time and was willing to be put through the intense aggravation of this particular nominating process. He very well might have said "you know what, I like the odds that Hillary is elected and then nominates me later."
posted by mightygodking at 12:30 PM on March 16, 2016 [10 favorites]

KENDRICG LAMARR

No, it's Hedley!
posted by kirkaracha at 12:33 PM on March 16, 2016 [8 favorites]

Now four Republican senators say they will meet with Judge Garland:

Ayotte, Collins, Flake, Portman

Ayotte and Collins I get. They're both female senators smack in the middle of New England where Republicans are still expected to act with a modicum of decorum and respect for the process.

Flake and Portman? Is Flake signing his own primary death warrant or will a party chief do that for him? Portman has already had his primary election so zero people can do anything about him bar elect a Democrat for the next six years but that still doesn't explain why he's actually deciding to poke and prod the hornet's nest.
posted by Talez at 12:34 PM on March 16, 2016

I will not meet Garland in a box.
I will not meet him live on Fox.

I will not meet him over lunch.
Or even with Frank Luntz.

I will not meet him in my lair.
I will not meet him anywhere.

-Mitch McConnell
posted by T.D. Strange at 12:34 PM on March 16, 2016 [50 favorites]

So instead of yet another Harvard/Yale law school graduate, why not save at least one chair for someone outside the legal profession?

Like Harriet Miers?
posted by kirkaracha at 12:35 PM on March 16, 2016 [1 favorite]

Srinivasan spent a lot of time defending the Bush Administration's Gitmo policies in the Solicitor General's office. I realize he was doing his job, but he was also fighting to ensure that people imprisoned by the United States have no access to our actual legal system.

I do recognize position is somewhat similar to the criticism with Jane Kelly, who has been attacked for doing her job as a public defender representing unsavory clients. The difference is that everyone should have the right to counsel and a defense. Kelly served to protect that right, while Srinivasan fought to take that right away from people (insofar as you believe that not being allowed in grown-up real court instead of kangaroo legal limbo indefinite detention military "court" is problematic).

Note of course that Garland is arguably worse on this particular issue. Some scholars argue he was bound by precedent in al Odah, but he certainly wasn't doing anything to uphold the rule of law in giving prisoners access to the courts.
posted by zachlipton at 12:35 PM on March 16, 2016 [3 favorites]

Thanks, T.D. Strange. The "Progressives could have had three people on the ballot come November—the nominee, VP, and the SCOTUS pick who never got a vote" thing still confuses me, though. I guess they're speaking figuratively?

I think they are saying if he nominates Elizabeth Warren or whomever and they never get a hearing, then that person is figuratively "on the ballot" in terms of driving voter engagement and turnout.
posted by Rock Steady at 12:35 PM on March 16, 2016 [1 favorite]

Assuming Clinton wins in November I would assume Srinivassan is a lock for a SCOTUS position probably to replace RBG or more hopefully Kennedy who will probably retire in a huff because he's no longer the swing justice.

Speaking of huffs, I would love to see Clinton nominate Obama. (And there's precedent -- William Howard Taft served on SCOTUS after being POTUS, as Chief Justice no less.)
posted by Gelatin at 12:43 PM on March 16, 2016 [6 favorites]

Assuming Clinton wins in November I would assume Srinivassan is a lock for a SCOTUS position probably to replace RBG or more hopefully Kennedy who will probably retire in a huff because he's no longer the swing justice.

I didn't realize the "Kennedy is an attention hog" meme was a thing, but hey, maybe if he wants to be the swing justice that badly, he'll just keep edging left to stay at the Court's center.
posted by duffell at 12:43 PM on March 16, 2016

Hi. I'm Troy McClure.
You might remember me from such late night movie classics as Merrick Garland: Attorney at Sex
posted by Senor Cardgage at 12:44 PM on March 16, 2016 [15 favorites]

Assuming Clinton wins in November I would assume Srinivassan is a lock for a SCOTUS position probably to replace RBG or more hopefully Kennedy who will probably retire in a huff because he's no longer the swing justice.

That's assuming a Republican Senate led by McConnell doesn't decide to just not vote on any nominee they don't approve of. Remember, the future of the court is at stale, so they don't have a lot to lose by doing things the Senate would normally never do.

I *hope* that doesn't come to pass, but McConnell has been such a roadblock and it's gotten him results, there's little reason for him to not at least try something along these lines. After all, this was the Senator who publicly announced that the Senate wouldn't hold hearings within a few hours of learning of Scalia's death.
posted by Brandon Blatcher at 12:44 PM on March 16, 2016

either attacking nominees for performing their jobs as lawyers is on the table or its not. i don't support people doing it to jane kelly and i don't support it with srinivasan.
posted by nadawi at 12:45 PM on March 16, 2016 [6 favorites]

In general, I'm very surprised that we haven't heard more discussion about or comparisons to Harry Truman's Turnip Day speech. Truman was also dealing with an obstructionist congress. He waited until after the Republican convention, and then called congress into special summer session, charging them to live up to their pledges and obligations.

Now, of course these are different times, and Republican promises these days are more likely to be about revoking rights and taking away health care than providing them (as Dewey's promises were), but I increasingly wonder if we'll see some kind of extraordinary charge or challenge to congress over the summer by the President, particularly in regard to this nomination, the outcome of which will (hopefully) make starkly clear that the flat out refusal of certain large sections of the current congress to do their damn jobs.
posted by anastasiav at 12:47 PM on March 16, 2016 [6 favorites]

That's assuming a Republican Senate led by McConnell doesn't decide to just not vote on any nominee they don't approve of. Remember, the future of the court is at stale, so they don't have a lot to lose by doing things the Senate would normally never do.

I've wondered about that, but I don't know if they could get away with it. Thanks to its arcane rules from a more bipartisan time, Senate operates in many ways by acclimation; a single Senator can gum up the works by refusing unanimous consent. The Democrats ought to be flexing those muscles right now, in fact, refusing unanimous consent for all manner of routine Senate business and making McConnell's job difficult until he agrees to schedule hearings and an up-or-down vote. After all, what comity is there really to lose at this point?
posted by Gelatin at 12:48 PM on March 16, 2016 [2 favorites]

It's hard to call certain dickish behavior as behind the pale - and use it as a campaigning tool - if it looks like you do it too.
posted by phearlez at 12:52 PM on March 16, 2016 [2 favorites]

Garland is a Jewish white male who would not add religious diversity to the bench, and at age 63 would be one of the oldest people ever to be confirmed to the high court.

This does feel a bit like the Pope Benedict situation. I.e., an uncontroversial choice who is meant to serve as a brief placeholder before the next guy more than anything else. Entering the court at 63, as a moderate who probably won't delay retirement out of political considerations like Scalia did and Ginsberg is probably doing now, Garland might not serve for more than three Presidential terms.
posted by tobascodagama at 12:55 PM on March 16, 2016 [1 favorite]

This is his only opportunity to appoint (and have confirmed) a Supreme court justice. A big deal for a president's legacy.

You mean, besides the last two?

Duhhh. LOL. More evidence that at 78 my memory is shot!
posted by notreally at 1:01 PM on March 16, 2016 [8 favorites]

It's hard to call certain dickish behavior as behind the pale - and use it as a campaigning tool - if it looks like you do it too.

Point, but I would bet on the elite political press' failure to understand the Senate's arcane rules. (After all, they let themselves be conned into pretending there's a 60-vote threshhold for passing anything in the Senate.) The Senate would simply get bogged down in a lot of boring procedural gibberish, which doesn't make for good TV (unlike, say, a Senator pretending to filibuster an empty chamber), and Democrats could simply repeat "we will not agree to unanimous consent as long as the Republicans refuse to gran Obama's nominee so much as a hearing," the latter part to be replaced with "up or down vote" as needed.

Note that I believe the Republicans could let Garland have his vote and then simply reject him; if memory serves me correctly, it's still actually a simple majority. Though again, one wonders if purple-state senators like Ayotte, who don't want voters to realize that a vote for them is tantamount to a vote for Jeff Sessions, will want to take that risk.
posted by Gelatin at 1:04 PM on March 16, 2016

Flake and Portman? Is Flake signing his own primary death warrant or will a party chief do that for him?

Jeff Flake is actually semi-reasonable for an R from Arizona. He opposed the govt shutdown and opposed the threatened (and vetoed) anti-gay bill or "Religious Freedum" bill that his state's legislature passed. He's also pro-Dream Act, and was one of the immigration "gang of eight."

He's in favor of ending the Cuban trade embargo. This is an R that should be petted and encouraged.
posted by feste at 1:08 PM on March 16, 2016 [6 favorites]

Actually, reading his Wiki page I find this lovely thing: "When Flake is asked by reporters about his feelings on immigration, Flake responds by talking about his childhood. He grew up on a working farm. Migrant laborers were employees, and Flake also spent time working. "I've never been able to view those who come here to work as a criminal class," he told a Washington Post reporter during an interview."

::swoon::
posted by feste at 1:10 PM on March 16, 2016 [11 favorites]

Re: Portman, a very popular former governor just got the democratic party nom to run against him for his seat come November. I bet there would be a lot of hay made of it if he went along with this nonsense.
posted by anthropophagous at 1:10 PM on March 16, 2016 [3 favorites]

(that is, McConnell fears he might lose just enough Republican votes to make the Democratic bloc -- which presumably would go all-in for Garland -- prevail.)
posted by Gelatin at 1:15 PM on March 16, 2016

...which makes me wonder if that's why McConnell is so adamant about not even holding hearings: He either fears the optics of out-and-out rejecting a nominee even more (which I doubt), or he doesn't believe he can trust his caucus to actually reject Obama's pick.

I think the idea was that they wanted cover for rejecting whoever Obama nominated regardless of their merits. Thus the "it's too late in his term" argument. If they get drawn into discussing the nominee, that gets blown up.
posted by selfnoise at 1:16 PM on March 16, 2016 [5 favorites]

After all, they let themselves be conned into pretending there's a 60-vote threshhold for passing anything in the Senate.

I think you have that backwards. There absolutely is an effective 60 vote threshold for passing anything, as cloture often is refused in order to deny something a vote. Political reporting often seems to be unable to find a way to effectively communicate the distinction between the two things, though there's the complication of not wanting to let Senators pretend they're voting against something without actually voting for it, or vice-versa.

That's really the problem with trying to game this out with explanations. You can say no no, we're just doing this as a protest vote because of this other thing but nobody is obligated to go along with repeating that for you. One thing is a fact, the other is spin - no matter how reasonable, believable, or consistent. And I imagine we could find any number of ways we would be annoyed if the press went along with the spin being put on actions and repeated, rather than just straight factual reporting.

So with that uncertainty I think it makes good sense to avoid that sort of brinksmanship. You might do that if you had a clear endgame or indication it would work, but if you don't then you cede your messaging opportunities for nothing. Unless the republicans have something they want to get through that they can't without you - and they have a notable advantage here, being people whose image is predicated on government doing less - refusing all business may not accomplish as much as just letting them have their monkey's paw and campaigning on it.
posted by phearlez at 1:21 PM on March 16, 2016 [1 favorite]

from my perspective as a member of the AAPI community and an Indian-American, Obama left a lot of money and votes on the table this round

This assumes Srinivasan wanted to be nominated at this time and was willing to be put through the intense aggravation of this particular nominating process.

It certainly does, of course, and as I stated, I don't know that I politically would prefer Srinivasan anyway or that I think nominating someone else was a mistake. It's just an aspect that I found especially interesting and gave me some insight into the greater complications of the nomination process beyond "merely" finding the best jurist. Obama may have had no choice but to leave behind that potential, and I'm not saying that I fault him for it. As a politically engaged member of the community, I saw in my own circles a rising sense of excitement, and I regret that it may now diminish, however good or great the reasons.

I don't really think I can overstate how immense an AAPI nomination would have been for those of us in that community, but it would arguably be the biggest thing since the repeal of racial immigration quotas in 1965, or even bigger. It was a Supreme Court decision that stripped Indians of naturalization, citizenship, and the right to immigrate in 1923, aligning them with the rest of the Asiatic Barred Zone. Putting a naturalized Indian immigrant on that same bench less than 100 years later would be mind-blowing, astonishing, and to be honest, we're unlikely to see a more unimpeachably-credentialed candidate than Srinivasan for some time. The nature of Court appointments being what they are, there's a feeling in the community that the stars are aligning for a brief window, and there's a hunger to seize that chance. You're quite right that the man himself may not desire it at this time, or ever, but I think that would only compound the sense of missed opportunity. I think I still use the present tense from time to time because I'm hoping there's still a chance somehow, maybe with Clinton/Sanders and RBG choosing to step down thereafter, or with a failed Garland nomination paving the way. It's just that it's so close and so possible, watching it slip away is, however understandable, very disappointing.
posted by Errant at 1:21 PM on March 16, 2016 [5 favorites]

But if you think about it, how can they avoid talking about his merits for months? It's kind of a stupid strategy, but stupid seems to work in the Senate more often than not.
posted by selfnoise at 1:22 PM on March 16, 2016

selfnoise I think the idea was that they wanted cover for rejecting whoever Obama nominated regardless of their merits. Thus the "it's too late in his term" argument. If they get drawn into discussing the nominee, that gets blown up.

There's that. But I think more important there's institutional inertia. Once you start the process at all, even just a little bit, it becomes vastly more difficult to stop it. Plus, you've got to be up there actively trying to stop it, and that might look bad for the cameras.

If McConnell can keep it from starting at all then he's going to have an easier time of it.

Which is why the Republicans defecting and announcing that they will, after all, meet with the nominee is likely to totally bugfuck McConnell's strategy. Now the ball is rolling, now the process is starting to play out, and that just made his efforts to stop the nomination that much more difficult.

Which makes me torn, because I really think the candidate is an awful candidate. Even another Kagan or Sotomayor would have been better, though I was still (foolishly) holding out hope for another Earl Warren. OTOH, watching McConnell fail is always such a lovely experience, and the more the Republicans fracture the happier I am.

On the gripping hand, it'd be nice if the Republicans did stonewall because I really do think that it would give the Democrats a much better chance of taking the Senate, though really that's never been all that likely.
posted by sotonohito at 1:39 PM on March 16, 2016 [2 favorites]

Considering that the RNC and some senators have both threatened to destroy the career of whomever accepts Obama's nomination , I wondered if anyone would accept the nomination at all. Also wasn't there some buzz that one of the Koch funded fink-tanks had basically communicated that losing the Senate was all right so long as they could block a new SCOTUS justice?
posted by Joey Michaels at 1:46 PM on March 16, 2016 [3 favorites]

I increasingly wonder if we'll see some kind of extraordinary charge or challenge to congress over the summer by the President, particularly in regard to this nomination, the outcome of which will (hopefully) make starkly clear that the flat out refusal of certain large sections of the current congress to do their damn jobs.
...
you've got to be up there actively trying to stop it, and that might look bad for the cameras.
...
a single Senator can gum up the works by refusing unanimous consent

oh HI ted, I didn't see you there!

What's that, you're in a tough nomination race and want to play Mr. Smith Goes To Washington in a way that's going to screw over several of your fellow Republican senators facing tough reelection bids; make your party leadership look incompetent; and force your caucus to reveal itself as unreasonably obstructionist at the precise moment people are paying attention?

AFTER YOU, good sir!
posted by tivalasvegas at 1:51 PM on March 16, 2016 [2 favorites]

I didn't even know Judgy Garland was alive, let alone still singing! I hope they put her in the Supreme Court, because she was just magic in The Wizard of Oz.
posted by the quidnunc kid at 1:55 PM on March 16, 2016 [1 favorite]

What's this I hear about Judge Reinhold getting nominated to the Supreme Court?
posted by duffell at 2:03 PM on March 16, 2016 [2 favorites]

oh HI ted, I didn't see you there!

What's that, you're in a tough nomination race and want to play Mr. Smith Goes To Washington in a way that's going to screw over several of your fellow Republican senators facing tough reelection bids; make your party leadership look incompetent; and force your caucus to reveal itself as unreasonably obstructionist at the precise moment people are paying attention?

AFTER YOU, good sir!

They all already hate him because he DGAF about anyone else's career but his own. The people he considers his constituents would consider this a good thing.

All of which is made irrelevant by the fact that the hold can be anonymous.
posted by phearlez at 2:08 PM on March 16, 2016 [1 favorite]

Devonian When the Supreme Court says they are is the short answer.

We're in somewhat uncharted waters here. The Constitution says that the President appoints members of the Supreme Court with the "advise and consent" of the Senate. That's it.

Which traditionally has been taken to mean that the Senate will reject the really bonkers candidates (Bork, Meyers) but basically has to hold its nose and accept candidates it objects to ideologically. But there isn't a law saying they have to.

In theory if the Senate is held by the Republicans after November but Clinton or Sanders is President they could just refuse to accept any of their nominations.

I suppose the President could sue Congress and then the Court would have to make a decision on what "advise and consent" means, but that's an iffy proposition and gets doubly weird since it'd be the Court voting basically on itself.

The TL;DR is that the Republicans are threatening a Constitutional crisis, and no one really knows what's going to happen.
posted by sotonohito at 2:15 PM on March 16, 2016 [4 favorites]

Which makes me torn, because I really think the candidate is an awful candidate. Even another Kagan or Sotomayor would have been better, though I was still (foolishly) holding out hope for another Earl Warren.

I feel like I'm banging this drum kind of a lot today, so I'll stop after this, but it might be worth taking a look at who Earl Warren was when he was nominated. A tough-on-crime prosecutor who, when elected to state office in California, pushed hard for Japanese internment. Later, he was a failed Republican Vice-Presidential candidate (and kind of disastrously failed considering he didn't even carry his home state) and then a Republican president handed him a plum spot on the Court as part of a handshake deal for back-room election support. Is that resume any better than Garland's? If anything, it's worse in terms of things like visible support for civil liberties.

I don't really know much of anything about Merrick Garland. Maybe, in the relatively unlikely event that he's confirmed, he'll turn out to be a secret fascist. Maybe he'll end up like Earl Warren. Maybe he'll just be a forgettable centrist who retires in 10 years. My point is that we in the general public barely know what his jurisprudence is, let alone how it would shape the Court, and the easiest way to show that is that exactly what you're saying (and worse) was said about the nomination of any justices you do admire.
posted by Copronymus at 2:19 PM on March 16, 2016 [15 favorites]

Basically, we don't have anything similar to your doctrine of the supremacy of Parliament. As far as I understand the British (unwritten) constitution, Parliament is absolutely supreme, and a majority in Parliament can pass literally any law it wishes. So there's not ever a constitutional crisis in this sense unless there is a dispute about whether the Government (what we'd call the Administration) has the support of a majority in Parliament. And if there is some dispute about that, the Crown can step in as a last resort to dissolve Parliament and fresh elections are held, hopefully wiping the slate clean.

In our situation, the House, Senate and President are fully independent of each other per the written Constitution, so in cases of conflict between them a separate, independent body (the Supreme Court) adjudicates disputes. But as sotonhito alludes to, this dispute is about nominations to the Court itself; and of course, the Court is now evenly split between conservatives and liberals. So there's the possibility of a situation where the Senate and the President disagree and the Supreme Court isn't able to definitively rule. In that case, well, ¯\_(ツ)_/¯.
posted by tivalasvegas at 2:26 PM on March 16, 2016 [2 favorites]

They all already hate him because he DGAF about anyone else's career but his own. The people he considers his constituents would consider this a good thing.

That's my point. Ted Cruz probably has the ability to do a thing that will result in the fucking-over of his party's leadership and electoral prospects, and also the desire to do so.

If people get disgusted enough at the obstruction-o-rama, we could even be treated to ever-more-pitiful pleadings from Mitch McConnell et al. for Cruz to stop the circus so Republicans can quietly let the nomination go through. But of course his constituency would eat the grandstanding up like candy -- Ted Cruz, standing alone for pro-life values and the Constitution and against Activist Liberal Judges and the Establishment Duopoly.
posted by tivalasvegas at 2:36 PM on March 16, 2016

Wow, fascinating to read those (not so old) Kagan and Sotomayor threads. Especially the Kagan thread. As much as I wish that our next supreme court judge could bring us demographically closer to parity/equity in some way, hindsight-reading those threads leaves me feeling (happily) somewhat more confidence in Obama's judgment and ever so slightly less in the Metafilter commentariat.
posted by Salamandrous at 2:46 PM on March 16, 2016 [27 favorites]

IANAAmerican, let alone someone with more than a basic knowledge of your constitution, but at what point do actions designed to thwart it become actually illegal?

I'm not a lawyer let alone a constitutional specialist, but I'd guess that the Supreme Court would give pretty strong deference to the right of the Senate to handle its own affairs, even if it's pretty clear that it has no intent to fulfill its duty to "advise and consent" to Presidential nominees. Otherwise, I mean -- how would that even be enforced? The Court could issue a ruling, the Senate ignore it, and... the President sends in the National Guard and forces Senators to take an up-or-down vote at gunpoint? Yeah, that's not happening.
posted by tivalasvegas at 2:47 PM on March 16, 2016 [2 favorites]

Also wasn't there some buzz that one of the Koch funded fink-tanks had basically communicated that losing the Senate was all right so long as they could block a new SCOTUS justice?

That only makes sense if they think they will get the Presidency. Because otherwise they end up with a Democratic Senate (if they "lose the Senate" in that scenario) and a Democratic President. All to deny a nominee for less than a year? And end up with a more liberal one, quite likely?
posted by thefoxgod at 2:49 PM on March 16, 2016 [1 favorite]

fink-tanks

Heh.

Wasn't there a thing last cycle about how many races were funded by the Koch Bros. or whatever that ended up with them just wasting lots of money? Or maybe it was just about how many different billionaires got their own pet candidate in 2012, and it didn't work out for any of them.

Point is, you can do a lot of things with a lot of money, but you can also do a lot of nothing with a lot of money. I don't think the Kochs are particularly savvy operators any more than Trump's a great businessman. They just start with a lot of cushion so they're bound to get some wins.
posted by tivalasvegas at 2:54 PM on March 16, 2016 [2 favorites]

All of which is made irrelevant by the fact that the hold can be anonymous.

I don't know a lot about Ted Cruz, but I don't think you have to worry about this part.
posted by GhostintheMachine at 3:13 PM on March 16, 2016 [3 favorites]

The novel theory that the presidential mandate only lasts for three-quarters of a term is embarrassingly untenable …

Embarrassing is exactly the right word. I've felt hot outrage at a million things modern Republicans have done, but there's something about the brazen made-up-ness of this idea that the President loses some of their powers after 87.5% of their term is over that makes me cringe in misplaced embarrassment whenever I think about it.
posted by glhaynes at 3:16 PM on March 16, 2016 [7 favorites]

At this point, it's either double-down on the crazy or get booted out as soon as his states' Rs can find a more right (Bevin-like) candidate to challenge him.

MR.SPEAKER! ARE YOU BEING HELD HOSTAGE BY THE RIGHT WING OF YOUR PARTY? BLINK TWICE IF YOU'RE HERE AGAINST YOUR WILL!
posted by happyroach at 3:18 PM on March 16, 2016 [5 favorites]

Onion: Defiant Mitch McConnell Holds Merrick Garland’s Severed Head Aloft In Front Of Capitol Building
posted by Joey Michaels at 3:19 PM on March 16, 2016 [5 favorites]

the [black] President loses some of their powers after 87.5% of their term

60%, if we're going to be strict originalists about it.
posted by tivalasvegas at 3:25 PM on March 16, 2016 [6 favorites]

60%, if we're going to be strict originalists about it.

The current republican leadership would never do that -- it would require compromise.
posted by nathan_teske at 3:48 PM on March 16, 2016 [5 favorites]

hopefully Kennedy who will probably retire in a huff because he's no longer the swing justice

He's already sore because he lost his role as salsa justice to Sotomayor.
posted by kirkaracha at 3:59 PM on March 16, 2016

So there are currently 46 Democratic senators, and some Republican senators are making noises about wanting to support this pick (e.g. Susan Collins and Mark Kirk).

Is it *absolutely* necessary for Chuck Grassley to allow a vote to take place? Or are there any parliamentary procedures where the Democrats could force a vote and get 4 Republicans to sign on, with Biden as the tie-breaker?
posted by crazy with stars at 4:06 PM on March 16, 2016

Consider the (hopefully very remote) chance of a Trump win. This might be a hedge against whatever insane nominee he would put forward.

Does Trump even have a horse?
posted by Joe in Australia at 4:07 PM on March 16, 2016 [24 favorites]

What I don't get about all this is that I thought you Americans were profoundly fond of your constitution, and what the GOP senate is doing to the nomination process seems profoundly unconstitutional. The novel theory that the presidential mandate only lasts for three-quarters of a term is embarrassingly untenable ...

The Republicans are applying Article 1, Section 2, Paragraph 3 of the Constitution that says that African-Americans only count for three-fifths of a term.

It's annoying that the press has bought into the Republicans' new definition of lame duck. Since the founding of the country, lame duck has referred to the time between the election of a successor and leaving office. And in particular, it only refers to the case of an incumbent being shot down and wounded in an effort for re-election to a second term and therefore having little political support.
posted by JackFlash at 4:12 PM on March 16, 2016 [5 favorites]

But somehow we should be heartened by the people we put in power playing chicken with Congress by nominating someone who may not share our values?

This statement only makes sense if you clearly define the terms "may not" and "our values."
posted by JackFlash at 4:15 PM on March 16, 2016

Is it *absolutely* necessary for Chuck Grassley to allow a vote to take place?

Yes. And not only that, McConnell has complete discretion over whether to schedule a cloture/floor vote.
posted by T.D. Strange at 4:26 PM on March 16, 2016

What I don't get about all this is that I thought you Americans were profoundly fond of your constitution, and what the GOP senate is doing to the nomination process seems profoundly unconstitutional.

For many Americans "the Constitution" is used as short-hand for "things I like" rather than "actual written document that forms the basis of the United States government".
posted by Anonymous at 4:32 PM on March 16, 2016

Just like the Bible.
posted by kirkaracha at 4:36 PM on March 16, 2016 [14 favorites]

Damon Young at VSB thinks that Obama is trolling Republicans like parents troll their children.
posted by TwoStride at 4:39 PM on March 16, 2016 [4 favorites]

What I don't get about all this is that I thought you Americans were profoundly fond of your constitution, and what the GOP senate is doing to the nomination process seems profoundly unconstitutional.

The Constitution is one thing, the Senate and House rules, which are not (as a rule) defined in the Constitution but rather have been built up by politicians over time, are quite another. It’s also worth remembering that the Constitution assumes everyone is going to try to get along, not that they will be deliberately trying to obstruct each other. The system runs into logjams when no one is willing to play.
posted by Going To Maine at 4:40 PM on March 16, 2016 [2 favorites]

I'm interested in hearing more about the Black Lives Matter response to this, given Garland's criminal justice record. Shaun King is arguing that it "spells doom for criminal justice reform." Van Jones apparently called him "pro-cop" on CNN today.
posted by dialetheia at 4:41 PM on March 16, 2016 [9 favorites]

"Supra. Especially considering that it's where the bulk of the country is, by definition. Administering justice from a central position, making accommodations from both sides, isn't necessarily a bad thing, or an easy one. (There are exceptions, of course.)"

That the bulk of the country is moderate is a pretty common mistaken assumption based on misleading averaging of positions and assuming a coherent philosophy behind voter actions. Voters tend to be extremists about a few issues, to the extent that they will vote against someone who agrees with more of their positions (and would ostensibly thereby be a better overall choice for them) in order to vote for someone who is more extreme on their extreme preference. This is most obviously illustrated by single-issue anti-choice voters, especially Catholics, who tend to be socially liberal and pro-welfare in general.
posted by klangklangston at 5:01 PM on March 16, 2016 [6 favorites]

What I don't get about all this is that I thought you Americans were profoundly fond of your constitution,

Well, I mean, America makes a lot more sense in general if you start off with the assumption that the Americans yelling the loudest about something are the ones with the least understanding of that something.
posted by soundguy99 at 5:05 PM on March 16, 2016 [10 favorites]

It also assumes that this is unconstitutional which, sadly, I don't believe it is. In letter if not spirit.
posted by Justinian at 5:07 PM on March 16, 2016 [4 favorites]

It also assumes that this is unconstitutional which, sadly, I don't believe it is. In letter if not spirit.

Yeah, this is one of those loopholes that founding fathers didn't fathom. The poor fools made the mistake of thinking politicians would generally want things to work as opposed to just throwing a tantrum.
posted by Brandon Blatcher at 5:12 PM on March 16, 2016 [3 favorites]

I read something today which put him squarely in an ideological cluster with the current left wing of the court, between Kagan and Ginsburg.

Why political scientists think Merrick Garland is more liberal than lawyers do: "The measurement that called Garland a liberal wasn't looking at his jurisprudence. ... This score isn't based on anything about Garland. It's measuring the ideological leanings of President Bill Clinton, who nominated Garland to the DC Circuit Court in 1995. ... Another way of measuring Garland's ideology puts him much closer to the center, to the right of Breyer and Kagan but still far to the left of Kennedy. This lines up much better with the public perception of Garland. But this isn't based on Garland's record or previous votes, either. It's based on the political leanings of the law clerks he hired to work with him."
posted by dialetheia at 5:13 PM on March 16, 2016 [5 favorites]

Yeah, this is one of those loopholes that founding fathers didn't fathom.

I think the legislative branch both refusing to confirm judicial appointments and using parliamentary maneuvers to avoid going into recess is the most likely thing to result in a Constitutional crisis. It's not inevitable by any means but I think, if one happens, that will be the issue.
posted by Justinian at 5:23 PM on March 16, 2016

But they have to adjourn at some point between the election and the swearing-in of the new class of senators, don't they? Or is the Senate, unlike the House, considered a continuing body that in theory could be in-session indefinitely?
posted by tivalasvegas at 5:28 PM on March 16, 2016

Not a fan of the nomination. Garland is too old. As I said in 2009 after Justice Souter retired:

William O. Douglas was 40 at the time of his confirmation and Justice Thomas was 43. It would be great if a qualified, liberal 40 year old were nominated and confirmed and then served at least 40 years.
posted by mlis at 5:29 PM on March 16, 2016 [1 favorite]

A recess appointment to SCOTUS won't happen anyway. After the election, Obama would have no reason if Hilary won, either they would confirm Garland in the lame duck, or she would have 4 years to get her own pick through. If ::shudder:: Trump won, a recess appointment would barely have time to get his black robe fitted before Trump made his own appointment who would be instantly confirmed by the assuredly still Republican Senate, not that that would be the first thing on anyone's mind in the mad scramble to escape Trump's impending hellscape.
posted by T.D. Strange at 5:39 PM on March 16, 2016 [2 favorites]

I think most of you are selling the founding fathers short. From my observation, they intentionally set up a system that requires consensus and compromise, and that gridlocks if any of the parties gets too radical. They not only saw these kinds of loopholes coming, they made sure they existed. It keeps an extreme president in check (whether she is your kind of extreme or not), and ultimately (via things like the veto), keeps the houses pliable in the long term if not the short term.
posted by Bovine Love at 5:41 PM on March 16, 2016

Yeah, it's not like the Founding Fathers didn't have to deal with disagreement and acrimony; IIRC there are quite a few who would have preferred that the 3/5 compromise hadn't happened but we got that turd anyway in order to appease the slave-holding states. There are probably a lot more examples from that period, but I'm no historian, let alone an 18th century historian.
posted by indubitable at 5:44 PM on March 16, 2016

McConnell to Obama: Democrats started the SCOTUS wars
posted by Brandon Blatcher at 5:52 PM on March 16, 2016

Yeah, but this isn't about a disgreement, it's about a branch of government flat refusing to do its job.
posted by Brandon Blatcher at 5:55 PM on March 16, 2016 [4 favorites]

Robert Reich: "Why are Senate Republicans who refuse even to hold hearings on Garland violating the Constitution? And what can you do about it?"
posted by kliuless at 5:55 PM on March 16, 2016

I think that video sums up my take on it - the ultimate responsibility in a democracy lies with the people, which is the worst possible idea except for all the others.

But you do have NFLTG Obama, who can be as presidential as he likes, against a GOP which looks like it can barely hold it together as a party. That's not a bad opening position, even for 11-dimensional chess, and the guy _is_ a Vulcan, after all.
posted by Devonian at 6:50 PM on March 16, 2016 [1 favorite]

::shudder:: Trump won, a recess appointment would barely have time to get his black robe fitted before Trump made his own appointment who would be instantly confirmed by the assuredly still Republican Senate, not that that would be the first thing on anyone's mind in the mad scramble to escape Trump's impending hellscape.

Given that Mitch McConnell has described the Senate’s strategy for dealing with Trump as “drop[ping] him like a hot rock”, to say nothing of the obvious chaos across the Republican party, assuming that the establishment would line up in lockstep behind Trump is a bit presumptuous.
posted by Going To Maine at 7:04 PM on March 16, 2016 [1 favorite]

Is it *absolutely* necessary for Chuck Grassley to allow a vote to take place? Or are there any parliamentary procedures where the Democrats could force a vote and get 4 Republicans to sign on, with Biden as the tie-breaker?

If the Democrats have a majority after the election, they could use the "nuclear option" to force a vote. I don't know if there's any way to do it while the Democrats are the minority party. Even if they have a few Republicans who would be willing to vote for the nominee, they'd also have to vote to kick Grassley off the Judiciary Committee or otherwise change the rules in a drastic way, and I don't think that's going to happen.
posted by BungaDunga at 7:06 PM on March 16, 2016

Basically I assume that Republicans will look at polling data over the next couple of months and eventually cave.

The reality is the Garland is as good as it's going to get for them in terms of a nominee. He's as close to center as it's possible to be and his age makes him much more acceptable as he's unlikely to have more than a 10-15 career.

The optics for obstructing this nominee are awful because they can't pretend it's a principled stand, their very own quotes reveal the depth of partisanship present and for at-risk Senators this is fucking awful because now they are looking at the coattails of Trump, their own challenger and looking like complete hypocrites to their voters. That might play well with the base but is going to come with a cost in terms of independent voters.

They will hold out hope that the polling stablizes in their favor but if it looks more and more likely that Clinton will beat Trump like a rented mule and the Senate Majority is at stake they'll cave because self-interest beats principle.
posted by vuron at 7:22 PM on March 16, 2016 [3 favorites]

nadawi: "where we all know that "some reason" is that ~~obama~~ Hillary is ~~black~~ a woman and they ~~have~~ will never see ~~n him~~ her as a legitimate president."

Got that out of the way for the future.

I'm simply afraid that we're in for another 4-8 years of useless obstruction from the same folks or those who think as they do.

Don't get me wrong. I'm still voting for Sanders or Clinton when the election rolls around.
posted by InsertNiftyNameHere at 7:26 PM on March 16, 2016

I suppose the President could sue Congress and then the Court would have to make a decision on what "advise and consent" means, but that's an iffy proposition and gets doubly weird since it'd be the Court voting basically on itself.

I strongly suspect the Court would rule that that was a non-justiciable political question, i.e., the question of what constitutes a proper or improper application of the Senate's "advise and consent" role can only be answered by the Senate itself. As the advise and consent role is one of the checks the legislative branch holds on the judicial, it would be improper for the judicial branch to overrule it, no matter how the Senate decided to apply it.

For a somewhat related case, see Nixon v. United States, in which the Court was asked to rule on whether the Senate had properly carried out an impeachment trial for federal judge Walter Nixon (no relation to President Richard Nixon); the Court ruled (9-0) that that was a non-justiciable political question; only the Senate can decide what constitutes a proper impeachment trial by the Senate. Although this case involved an impeachment rather than an appointment, the underlying principle that the judicial branch cannot overrule one of the legislative branch's checks on the judicial branch itself is the same.
posted by DevilsAdvocate at 8:23 PM on March 16, 2016 [10 favorites]

My take is that this games out as good politics and about as good as I personally would want.

In the unlikely event the Republicans consider confirming, he's by far the best chance to lock on a non-conservative in Scalia's seat. A huge upgrade politically and even at 63 he could serve a decade or two.

If the Republicans will confirm no one anyway, he's even better IMHO. A relative centrist gets the Democrats the best press and the best odds of winning the elections. Nominating someone more clearly appealing to the Democratic base makes the "Obama's radical nominee" narrative easier; with Garland they'll possibly try it and alienate more swing voters. (And swing voters actually vote in presidential elections.)

Assuming you have an open seat in 2017, the disaster scenario is that Republicans have the presidency and the Senate. So a huge potential downside and every reason to maximize your chances of avoiding that, by getting a confirmation or hurting Republican chances. OTOH the upside waiting until 2017 isn't that high--the new president still needs to get a nominee by the Senate and a bloody supreme court fight over a 'real' liberal may not be their first priority in year one--it probably wouldn't be mine.

This is almost a slam dunk good choice for me. People who are not me may have higher risk tolerance than me during this election year; a preference for the rhetorical benefits of a doomed leftie nominee over the political advantages; or find Garland unacceptable in absolute terms. (Or not buy my logic, of course.)

Anyway, this is the most encouraging thing in the OP links and makes me think I could live with him:

On environmental law, Judge Garland has in a number of cases favored contested EPA regulations and actions when challenged by industry, and in other cases he has accepted challenges brought by environmental groups. This is in fact the area in which Judge Garland has been most willing to disagree with agency action.
posted by mark k at 9:18 PM on March 16, 2016 [13 favorites]

It would be great if a qualified, liberal 40 year old were nominated and confirmed and then served at least 40 years.

I know really great lawyers about 5-10 years younger than that. There's no way in hell I would want one of them on the Court at age 40. The position requires wisdom, extraordinary patience, and perspective uncommon in a 40 year-old.
posted by sallybrown at 10:50 PM on March 16, 2016 [4 favorites]

(Also, with all this talk about the Founding Fathers, let's not forget that they likely did not intend for the Court to have the power it currently has. Marbury v. Madison happened after the Court came into being.)
posted by sallybrown at 10:52 PM on March 16, 2016 [3 favorites]

Some aspect related to the current going-ons between the FBI and Apple is bound to reach the court sooner or later, and an anti-terrorist, pro-police judge appointed by the current President does not bode well for the side of privacy.
posted by fragmede at 11:30 PM on March 16, 2016 [3 favorites]

My take is that this games out as good politics and about as good as I personally would want.

I thought it was beautiful political gamesmanship. By picking the least objectionable, most politically neutral nominee possible (and one suggested by the Republicans themselves!) he's left the Republicans politically trapped. Trump's presumptive nomination is ripping away the veil from their strongman rhetoric and exposing them as babies in the middle of a temper tantrum. The GOP leadership knows this, and they know the death knell of their party is when the polite fiction ends and their bad behavior becomes the only topic of conversation.

Now Obama hits them with this. Either they go back on their blustering about letting the new president pick the nominee and earn the ire of the base, or they turn down the nomination and add fuel to the bonfire Trump is merrily dancing around. Their own people suggested this nomination three days ago and they still turn it down? It says a lot about how scared they are that this is the path they're taking.

This guy is far from the liberal justice of our dreams, but that's kind of the point. By giving Republicans exactly what they asked for Obama has well and truly exposed their games for what they are. The worst case scenario is Scalia gets replaced with a moderate. Best case scenario is President Clinton gets to choose. The Democrats really can't lose in this situation.
posted by Anonymous at 12:00 AM on March 17, 2016

senior dem Senate hand says GOP will cave in September and he will be confirmed.
posted by Ironmouth at 1:08 AM on March 17, 2016

(Also, with all this talk about the Founding Fathers, let's not forget that they likely did not intend for the Court to have the power it currently has. Marbury v. Madison happened after the Court came into being.)

The Federalist Papers (specifically, #78) endorses the power of the judiciary to declare unconstitutional laws void:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; ... Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.

Also, from the Wikipedia article on nullification (a competing theory under which individual state legislatures may ignore federal laws they believe to be unconstitutional):

[T]he records of the [Constitutional] Convention support the idea that the power to declare federal laws unconstitutional lies in the federal courts. At least fifteen Constitutional Convention delegates from nine states spoke about the power of the federal courts to declare federal laws unconstitutional.

That said, I would not be surprised to learn that some Founding Fathers opposed judicial review. I've learned to be skeptical whenever anyone declares that the "Founding Fathers" as a group believed this or that, as if they were of a single mind about anything other than the need for independence from Britain itself.
posted by DevilsAdvocate at 5:04 AM on March 17, 2016 [6 favorites]

By giving Republicans exactly what they asked for Obama has well and truly exposed their games for what they are.

People keep saying this but I keep wondering why it actually matters in the eyes of the electorate.
posted by CheesesOfBrazil at 5:26 AM on March 17, 2016 [4 favorites]

People keep saying this but I keep wondering why it actually matters in the eyes of the electorate.

That's what I think, too. If I'm a pro-life, pro-gun, anti-gay-marriage Republican voter who wants a court in line with my views, I'm going to see this as someone playing hardball to advance my goals, not "obstructionism."
posted by salvia at 5:36 AM on March 17, 2016 [4 favorites]

People keep saying this but I keep wondering why it actually matters in the eyes of the electorate.

There have been a number of polls run (at both the national and state levels) that show that refusing to even see the nominee has pretty significant potential downsides for GOP Senators that are up for re-election. An explanation from my second link:

-Strong majorities of voters in each of these states want the Supreme Court vacancy to be filled this year. It’s a 56/40 spread in favor of filling the seat in Iowa, 56/41 in Arizona and Missouri, and 55/41 in North Carolina. What’s particularly important in the numbers is the strong support for filling the seat among independents- it’s 60/38 in Missouri, 59/37 in Arizona, 58/38 in Iowa, and 55/38 in North Carolina. Independent voters will be key to determining whether these incumbents sink or swim this fall, and they want the vacancy filled.

-What voters especially have a problem with is Senate Republicans saying they’re going to reject President Obama’s nominee for the Supreme Court no matter who it is. Super majorities of voters in all four of these states- 69/25 in Arizona, 66/24 in Missouri, 66/25 in North Carolina, and 66/26 in Iowa say that the Senate should at least wait and see who’s put forward before deciding whether to confirm or deny that person. Even Republican voters- 56/35 in Arizona, 54/38 in North Carolina, 52/37 in Missouri, and 50/39 in Iowa think their Senators are taking far too extreme of a position by saying they won’t approve President Obama’s choice without even knowing who that choice is.

-The Supreme Court issue really could make a difference at the ballot box this fall. Voters by a 34 point margin in Arizona and Missouri, a 21 point margin in North Carolina, and a 14 point margin in Iowa say that they’re less likely to vote for their Republican Senators this fall if they refuse to confirm a nominee to the Supreme Court no matter who it is. This is again something where we find the Republican Senators could particularly pay a price with independent voters. Independents in Arizona say 61/18 they’re less likely to vote for John McCain because of this issue, and it’s 55/16 for Richard Burr with them in North Carolina, 55/20 for Roy Blunt with them in Missouri, and 48/24 for Chuck Grassley with them in Iowa.

Our surveys last week found that voters were angry over the Supreme Court issue in New Hampshire, Ohio, Pennsylvania, and Wisconsin and might punish Kelly Ayotte, Rob Portman, Pat Toomey, and Ron Johnson for it this fall. Those have always been seen as toss up Senate races. But this newest set of polls shows that even in more Republican leaning states like Arizona, Iowa, Missouri, and North Carolina voters are still angry over the obstructionism John McCain, Chuck Grassley, Roy Blunt, and Richard Burr are showing on this issue. That- combined with the increasing specter of Republicans nominating Donald Trump- could help put these seats on the board for Democrats this fall as well.

That's eight states, most of which are swing states, and a couple others that could definitely become swing states. All the Democrats need is a net gain of five of those (four, if they win the WH) to gain a majority. If it's after Labor Day and both Trump and most of those GOP Senators mentioned above are down, especially outside the margin of error, McConnell's tune might change. Or it might not, who knows? But generally speaking, he's been fairly canny about keeping the Senate in line with his political desires.
posted by zombieflanders at 6:05 AM on March 17, 2016 [16 favorites]

Given that Mitch McConnell has described the Senate’s strategy for dealing with Trump as “drop[ping] him like a hot rock”, to say nothing of the obvious chaos across the Republican party, assuming that the establishment would line up in lockstep behind Trump is a bit presumptuous.

Of course Mitch McConnell is going to try to distance establishment Republicans from Trump, especially if he perceives Trump as hindering Republican efforts to keep control of the Senate.

But lockstep voting is what Republicans do ("bipartisan" being generally defined by the so-called "liberal media" as "Democrats agreeing to Republican priorities"). And at the very least, Trump will almost certainly sign whatever harebrained legislation a Republican Congress will pass, so their interests will align at least that much (and in a way that I would certainly judge as bad for the nation to boot).
posted by Gelatin at 6:18 AM on March 17, 2016 [2 favorites]

People keep saying this but I keep wondering why it actually matters in the eyes of the electorate.

It also matters in they eyes of the Beltway political media, which is usually all too eager to accept Republican framing (on Morning Edition this morning, for example, Renee Montagne let Orrin Hatch assert, unchallenged, that Democrats would do the same, when Democrats confirmed Anthony Kennedy during an election year -- I know, thanks a lot, Dems -- and Clarence Thomas a year before an election. But Montagne did seem to question Hatch under the assumption that this level of obstructionism is at least abnormal.
posted by Gelatin at 6:28 AM on March 17, 2016 [5 favorites]

That's what I think, too. If I'm a pro-life, pro-gun, anti-gay-marriage Republican voter who wants a court in line with my views, I'm going to see this as someone playing hardball to advance my goals, not "obstructionism."

The person you've described is not as common as the Republican party leadership would like you to think. While movement conservatism has pushed the voting patterns of Republican lawmakers further and further to the right, the majority of American citizens favor increased gun control, keeping Roe v. Wade in place, and approve of marriage equality. Now, the person you've described is probably more likely than Joe or Jane Q. Public to be a politically engaged voter, I'll certainly give you that.

According to Pew:

85% of Americans favor background checks for gun shows and private sales. 70% favor a federal database of gun sales. 57% favor an outright ban on assault weapons.

63% of Americans oppose overturning Roe v. Wade, and 54% say abortion should be legal in all/most cases.

57% of Americans favor marriage equality.

Some interesting insights in those links about partisan divides, too; there's not exactly a consensus on any of these issues among Republican voters. A third of Republicans favor marriage equality. A quarter of Republicans either say abortion is morally acceptable or that it's not a moral issue. And Republican views on gun control are even more staggering (showing how out-of-step the NRA is, and how great its influence): 79% of Republicans favor universal background checks, 55% favor a federal database, and 48%--almost half--of Republicans favor a ban on assault weapons.
posted by duffell at 7:18 AM on March 17, 2016 [10 favorites]

But lockstep voting is what Republicans do ("bipartisan" being generally defined by the so-called "liberal media" as "Democrats agreeing to Republican priorities"). And at the very least, Trump will almost certainly sign whatever harebrained legislation a Republican Congress will pass, so their interests will align at least that much

I think you are severely overestimating the ability of the Republican Party to control Trump. The whole reason they are actively working against Trump is because they can't control him. The man is a monstrous narcissist whose rhetoric is based around petty insecurities and whatever will get him the most attention and cheers at a rally in the next five seconds. We aren't talking an canny strategist, or even an outsider willing to play ball once in a while. This is third-world, cult-of-personality, unbalanced dictator shit.
posted by Anonymous at 8:45 AM on March 17, 2016

I think you are severely overestimating the ability of the Republican Party to control Trump.

No, I'm suggesting that if Trump wins the presidency, the Republicans likely control Congress too. All they need Trump to do is sign their legislative wish-list and, hey presto, we have the repeal of Obamacare, more tax cuts for millionaires, more subsidies for fossil fuels and factory farming, and the hamstringing of the EPA. We've already seen, only recently, what happens when Republicans have both an insecure narcissist in the White House and control of Congress. As long as Trump signs what the Koch Brothers and the American Legislative Exchange Council want, what more control do they need?
posted by Gelatin at 8:53 AM on March 17, 2016 [8 favorites]

I think you are severely overestimating the ability of the Republican Party to control Trump.

No, I'm suggesting that if Trump wins the presidency, the Republicans likely control Congress too. All they need Trump to do is sign their legislative wish-list and, hey presto, we have the repeal of Obamacare, more tax cuts for millionaires, more subsidies for fossil fuels and factory farming, and the hamstringing of the EPA.

QFT. We here in Michigan have been dealing with a political-outsider, business-friendly, it's-(my-version-of)-the-economy-stupid Republican chief executive for the last six years, and this is exactly what has happened. Snyder will sign virtually any stupid social-conservative bill that crosses his desk -- even though he campaigned as a reasonable centrist Republican -- as long as the legislature does what he wants on economic stuff. It's a scary log-rolling hydra.
posted by Etrigan at 8:58 AM on March 17, 2016 [13 favorites]

By giving Republicans exactly what they asked for Obama has well and truly exposed their games for what they are.

The sad thing is, I don't think they have.

The leading news story isn't going to be "REPUBLICANS BLOCK NOMINATION OF CANDIDATE THAT THEY SUGGESTED THEMSELVES" -- it's going to be a soft-peddled piece of "neutral" BS that obscures the staggering amount of obstructionism going on, under the pretense of exploring both sides.

And that's if you're not watching Fox.

This isn't going to be the thing that finally wakes people up. Nothing will wake them up. The Republican party has been pulling this kind of shit for years, and it works because voters as a whole are incredibly uninformed, ideologically entrenched bunch of people. We get more coverage of the candidates' campaigns than their actual political positions. (Hey, it's the national reality TV show!)

I don't know, the more I watch the Republicans behave like petty, hateful toddlers and the more I watch people continue to vote for them, the less hopeful I get for real change.
posted by Kutsuwamushi at 9:27 AM on March 17, 2016 [1 favorite]

ll they need Trump to do is sign their legislative wish-list and, hey presto, we have the repeal of Obamacare, more tax cuts for millionaires, more subsidies for fossil fuels and factory farming, and the hamstringing of the EPA.

A thousand times this. People act like Trump is the singular extremist, when the "normal" Republican agenda is only an iota less extreme. Really all Trump is doing is taking the bog standard Republican positions and ramping them up even more, without any filters. Let's not pretend for a second like a GOP congress would act as any kind of check on President Trump whatsoever. Even the so called #neverTrump movement won't to a man comitt to opposing him once he's the nominee. They hate Democrats far, far, more than Trump, regardless of how bad for the country he could be. That's not even a secondary concern.
posted by T.D. Strange at 9:32 AM on March 17, 2016 [10 favorites]

I don't know, the more I watch the Republicans behave like petty, hateful toddlers and the more I watch people continue to vote for them, the less hopeful I get for real change.

Bear in mind that the party itself has gone through a lot of dramatic shifts: witness Trump, or forcing candidates rightward through primarying. The people who “keep voting” for Republicans aren’t voting for the same Republicans over and over again - they’re voting for Republicans who they think will do things differently from the old Republicans. So I’m not sure that “continue to vote for” is the right model here. (For McConnell, sure, but he also brings home the bacon at home, and that’s a tried and true strategy.)
posted by Going To Maine at 9:34 AM on March 17, 2016 [1 favorite]

Isn't it entirely possible that our centrist president has nominated a centrist judge because ... that isn't a particularly surprising development?
posted by kyrademon at 10:51 AM on March 17, 2016 [5 favorites]

Obama nominating a centrist is not surprising. The surprising move -- and what indicates that there is more to the story than just "centrists gonna centrist" -- is the fact that the particular centrist judge in question was mentioned by name last week as somebody Obama would never nominate to the court because he's just such an extremely out-there Liberal McLiberalson.

There's no reality-based way to read that as anything other than Obama calling Hatch's bluff.
posted by tobascodagama at 10:55 AM on March 17, 2016 [7 favorites]

Steve Benen: Senate Republicans turn their principles into a punch line (emphasis in original)

Sen. Orrin Hatch on Thursday blasted the notion that the Senate would consider the Supreme Court nomination of Merrick Garland before November – but suggested he would be open to confirming him if Hillary Clinton wins the general election and doesn’t announce her own choice. […]

Hatch remarked that it is possible that Garland could undergo a confirmation process during the lame-duck session following the Nov. 8 election, but that is largely contingent upon who the next president would be.
You’ve got to be kidding me.

I honestly can’t remember the last time Republicans went so far to shred their own talking points in public. According to Orrin Hatch, the GOP’s blockade against Garland has nothing to do with partisanship or even the judge’s nomination on the merits, but rather, this is solely about principle.

Unless, of course, Hillary Clinton wins the presidential election, at which point the GOP will gladly throw their principles out the window. Hatch isn’t the only one, either.

We’re talking about elected senators who aren’t even trying to work in good faith. Some of these Republicans seem quite comfortable appearing nakedly partisan, abandoning any sense of propriety or responsibility, as if they simply don’t care whether or not they appear ridiculous.

In fairness, there are some exceptions. Sen. Lindsey Graham (R-S.C.) conceded yesterday, “We can’t have it both ways.” Sen. David Perdue (R-Ga.), a fellow member of the Judiciary Committee, agreed and said he intended to stick to the underlying principle.

But these positions are not guiding Republican tactics, at least not right now.

posted by zombieflanders at 10:56 AM on March 17, 2016 [7 favorites]

"I think most of you are selling the founding fathers short. From my observation, they intentionally set up a system that requires consensus and compromise, and that gridlocks if any of the parties gets too radical. They not only saw these kinds of loopholes coming, they made sure they existed. It keeps an extreme president in check (whether she is your kind of extreme or not), and ultimately (via things like the veto), keeps the houses pliable in the long term if not the short term."

Yeah, the underlying presumption was that the interests of the property owning men and the comity of social connections within that class would allow gridlock to be resolved to the benefit of the people.

And it's not that they underestimated how partisan things would be — at the time, political fights were arguably more vicious, especially in the party press era, and certainly by the time Jackson took over. It's that they assumed that gridlock wouldn't be as damaging and that the class interests of the small number of political stakeholders would allow the best Enlightenment solution to be reached.

In systems terms, it doesn't scale properly. A lot of the procedural and representational issues that were locked into the constitution have been outgrown by the population and economy to the extent that their limitations are a lot more apparent and harmful.

For example, the original proportion of representatives to constituents in the House was about 1:30,000. Now it's about 1:210,000, meaning that many of the concerns that the Founders had about representation — that too few representatives would remove them from local concerns and from being of the working or merchant class — came true. However, given more proportional statehouses, like New Hampshire's, it's unclear whether radically increasing the number of reps would improve functionality all that much. It certainly would help reduce the influence of gerrymandering, but that many reps (roughly triple; let's say 1,200) would be kinda insane as a political body.

Which is, in theory, one of the appeals of a federalist approach — that you can devolve a lot of that power to the states, helping local governments be more representative. But as we see with things like block grants, devolving to state power is often a recipe for perversion of national policy goals.

I'm not sure what the answer is to preserve strong federal prerogative while still maintaining a high level of local representation in government, but whatever it is, it almost certainly will require at least one constitutional amendment to get past the current structural failure of divided governments. The theory that it's better to have a government that does nothing at all rather than one that inflicts any harms on any people (including taxes on the rich) can pretty much be thrown out.
posted by klangklangston at 11:03 AM on March 17, 2016 [7 favorites]

> "... the particular centrist judge in question was mentioned by name last week as somebody Obama would never nominate to the court ..."

Well, sure, but there seems to be some kind of assumption going on that Obama might have nominated some fire-breathing progressive type he secretly wants had the situation been different. And just as I have been for the past eight-plus years, I remain baffled by the notion that Obama secretly harbors fire-breathing progressive policies.
posted by kyrademon at 11:07 AM on March 17, 2016 [4 favorites]

there seems to be some kind of assumption going on that Obama might have nominated some fire-breathing progressive type he secretly wants had the situation been different.

The case for Garland's centrism is often made in contrast to Kagan and Sotomayor, whom Obama also nominated. I wouldn't call either Kagan or Sotomayor a fire-breathing progressive type either, but I've already noted the unique political calculus that makes the choice of Garland a sensible one, and hardly evidence that Obama has been longing to sneak a conservative onto the bench.

(I also can't help but wonder if Obama had nominated a fire-breathing liberal -- would that person have a snowball's chance to be confirmed by a senate dominated by Republicans still stinging from the rejection of Robert Bork? Fat chance.)

We’re talking about elected senators who aren’t even trying to work in good faith.

Well, duh. I see Obama's outflanking the Republicans with Garland's nomination as further evidence that he's figured that out (Obama, that is; Benen's had no illusions about Republican good faith for years). As if McConnell's unprecedented obstructionism -- which he declared the very day Obama was inaugurated -- wasn't reason enough.

One of the things I love about this pick, in fact, is how hard it makes it for both Republicans and their media enablers to pretend they're acting in good faith. Listening to the radio today, it appears hard enough, in fact, that the Republican bulwark seems to be showing some cracks.
posted by Gelatin at 11:47 AM on March 17, 2016 [1 favorite]

Honestly, they're being really stupid here, especially since Trump is almost certainly their nominee. Do they really want Hillary picking that slot, really?

It's even like accepting Garland would hurt them, most won't remember or care. I wonder what the hell McConnell was thinking with this move? Are they so far out of touch they didn't think Obama would nominate Garland after Hatch suggested him?
posted by Brandon Blatcher at 3:50 PM on March 17, 2016 [2 favorites]

Wired: Is Judge Garland a Liberal? Wikipedia Editors Battle to Save Facts From Politics

Prior to the announcement, Judge Garland’s page noted that he was recognized as a “judicial moderate.” After the announcement, however, an editor struck that description in favor of “extreme liberal.” A minute later, to stop potential “vandalism,” in Wiki-speak, the article was closed to open editing, meaning only confirmed editors would be allowed to change the post. A minute after that, the “judicial moderate” description was restored.

posted by ChurchHatesTucker at 5:22 PM on March 17, 2016 [2 favorites]

It's even like accepting Garland would hurt them, most won't remember or care. I wonder what the hell McConnell was thinking with this move? Are they so far out of touch they didn't think Obama would nominate Garland after Hatch suggested him?

I think the only thing they think about anymore is, "I don't want to be primaried."
posted by Drinky Die at 5:28 PM on March 17, 2016 [4 favorites]

It's even like accepting Garland would hurt them, most won’t remember or care. I wonder what the hell McConnell was thinking with this move? Are they so far out of touch they didn't think Obama would nominate Garland after Hatch suggested him?

I’ve seen a few articles suggesting that McConnell is just that concerned about Citizens United being overturned. Pundits aren’t truth, however, so take that with a grain of salt.
posted by Going To Maine at 5:36 PM on March 17, 2016 [2 favorites]

A loss of Citizens United would be a massive blow to the Republican party as they have shown absolutely no ability to crowdfund campaigns in the way that Democrats have.
posted by vuron at 5:52 PM on March 17, 2016 [2 favorites]

A loss of Citizens United is probably the only thing that can save the Republican party in the near and moderate term. It's fracturing into a bunch of rich oligarch fiefdoms (OK, more than it had already), and allowing outside spending to determine primaries, electing Tea Party nihilists. As Trump has shown, the "Republican establishment" has, like, zero practical power to represent compromise interests or to enforce discipline. That and the return of earmarks.
posted by klangklangston at 5:59 PM on March 17, 2016 [4 favorites]

A loss of Citizens United would be a massive blow to the Republican party as they have shown absolutely no ability to crowdfund campaigns in the way that Democrats have.

Republicans certainly won campaigns pre-Citizens United. So the idea that an old pro like McConnell would be so concerned about losing it feels at least a bit counterintuitive.

That and the return of earmarks.

The loss of earmarks seems to really have been a bad thing for everyone. It’s great to be better at finding them, but they were such an important part of making the sausage.
posted by Going To Maine at 6:03 PM on March 17, 2016 [5 favorites]

I don't think the Republican Party can be saved. The problem isn't that it's dying; the problem is that it committed suicide. Most political parties rely on a core of mid-level members that are committed to winning elections. When that core gets displaced by crazy-pants ideologues the party has nothing to keep itself on track and it implodes. That's what we're seeing now: Republican politicians have no freedom of action because they can't survive either an internal attack by Tea Party loyalists or an external attack at the ballot box. It's not a matter of deciding to become a serious political party again; there's basically nothing but a hollow shell.
posted by Joe in Australia at 6:39 PM on March 17, 2016 [4 favorites]

All they need Trump to do is sign their legislative wish-list and, hey presto, we have the repeal of Obamacare, more tax cuts for millionaires, more subsidies for fossil fuels and factory farming, and the hamstringing of the EPA.

Drink in This Republican Hypocrisy From the Flint Water Hearings Today. Goes down smooth, every time.
posted by homunculus at 8:19 PM on March 17, 2016 [3 favorites]

David Schraub on the "advice and consent" clause.
posted by Joe in Australia at 9:00 PM on March 17, 2016 [1 favorite]

"That's what we're seeing now: Republican politicians have no freedom of action because they can't survive either an internal attack by Tea Party loyalists or an external attack at the ballot box. It's not a matter of deciding to become a serious political party again; there's basically nothing but a hollow shell."

Because of demographics and the two-party system, the only way that the Republican Party becomes inconsequential is if another party supplants it. And the dying spasms of one of the two main parties does a shit-ton of damage on the way down. The collapse of the Whigs was one of the things that contributed to the Civil War. And as part of that, they became the Republicans. But not even losing the Civil War was enough to kill off the Democratic party.
posted by klangklangston at 9:29 PM on March 17, 2016 [3 favorites]

Whups, posted too early. What I wanted to add is that I want a functional, not-evil Republican party. But the Southern Strategy was a devil's bargain to maintain the power of the business class, but the frothing lunacy of the populist evangelicals was never going to make for a stable alliance.
posted by klangklangston at 9:47 PM on March 17, 2016 [1 favorite]

We really don't need anything resembling a civil war.
posted by Brandon Blatcher at 9:55 PM on March 17, 2016 [2 favorites]

What I wanted to add is that I want a functional, not-evil Republican party.

With Trump running about, I've been thinking recently that I've been fortunate that the party whose economic policy I mostly like is also the party that embraces tolerance towards race, gender, and sexual orientation.

This isn't inevitable. I can sort of imagine a Trump coalition that combines racism with more populism than mainstream Democrats show now to get votes. Presumably in response we'd get a Democratic party where Wall Street and multinationals call all nearly the economic and labor policy shots. I don't think the demographics would quite work out but it's scary anyway.
posted by mark k at 10:07 PM on March 17, 2016 [3 favorites]

The collapse of the Whigs was one of the things that contributed to the Civil War.

Wouldn't it make more sense to say that both were effects of the building crisis over slavery?
I don't think it was the breakup of a party that caused the war, except insofar as the party which emerged from the splintering of the Whigs was to build a new coalition that didn't rely on any southern support, and southern Democrats decided to secede as a result.
posted by tivalasvegas at 10:08 PM on March 17, 2016

mark k, if you squint a bit that's roughly the New Deal coalition, just with the Ds and Rs reversed....
posted by tivalasvegas at 10:14 PM on March 17, 2016 [1 favorite]

Hey! The link in that comment exposes the truth. WAKE UP SHEEPLE : homunculus hired by Koch Industries
posted by bardophile at 2:05 AM on March 18, 2016 [2 favorites]

Wouldn't it make more sense to say that both were effects of the building crisis over slavery?

The refusal on the part to even acknowledge the expansion of Slavery as a political issue doomed the Whigs, and frankly the entire governmental apparatus of the antebellum period. Both parties knew full well that the expansion of slavery was the political issue in the wake of the Mexican-American war, and both parties colluded to keep the debate more-or-less tabled indefinitely. In their defense, they were trying very hard to prevent southern succession and Civil War, but it's pretty clear that when there are red-hot political crises that neither party deigns to even acknowledge, a political meltdown and/or realignment can't be far behind.
posted by absalom at 4:02 AM on March 18, 2016 [7 favorites]

Because of demographics and the two-party system, the only way that the Republican Party becomes inconsequential is if another party supplants it. And the dying spasms of one of the two main parties does a shit-ton of damage on the way down.

Supplanting the Republican party (or the democratic party) is effectively impossible in our lifetimes. The two party - and these two parties specifically - system is baked into the state laws so deeply that it is an order of magnitude harder to put a non-party member on a ballot. Yes, it's doable at the presidential level, presuming you have enough money to deal with the ballot requirements across all the states, though you're still up against someone in a non-moribund party at that point.

Getting those state level abominations fixed requires either striking them down with litigation (which seems unlikely and still probably doesn't obviate the organizational advantages the R/D folks get) or getting them overturned with new legislation. Changing legislation means you have to get that change passed by people who are seeing an advantage from being in those parties, so probably you only get this done if you really start a grassroots level operation and start getting your dogcatchers elected on their way up to city council then to the state.

Personally I just have zero hope about that happening. I'd be delighted to be wrong, but even then I don't see how it doesn't take me well into my retirement years before I see myself start to be wrong. And I probably won't be excited about it anyway, since whatever new party will be very unlikely to be speaking to me. I'm not quite a democrat but they're mostly close enough for me. The ways they're not just don't seem likely to inspire people to stake out new ground.
posted by phearlez at 9:24 AM on March 18, 2016 [1 favorite]

Supplanting the Republican party (or the democratic party) is effectively impossible in our lifetimes. The two party - and these two parties specifically - system is baked into the state laws so deeply that it is an order of magnitude harder to put a non-party member on a ballot.

This is true-ish.

What I mean is that it's usually true (see the Greens, Pirate Party, etc.) but if the Tea Party/Trumpeters succeed in staging a coup of the Republicans there would be an establishment replacement pronto.
posted by ChurchHatesTucker at 5:50 PM on March 18, 2016

Just to really rub it in, Obama has now nominated an Appeals Court judge from Louisville (McConnell's home town), and McConnell has had to similarly refuse to consider her.
posted by dilettante at 6:33 PM on March 18, 2016 [5 favorites]

Just to really rub it in, Obama has now nominated an Appeals Court judge from Louisville (McConnell's home town), and McConnell has had to similarly refuse to consider her.

Hahahaha, that just...heh.
posted by Brandon Blatcher at 6:50 PM on March 18, 2016 [2 favorites]

Obama interviewed by Nina Totenberg on his choice
posted by Roger Dodger at 12:44 PM on March 19, 2016 [1 favorite]

"Supplanting the Republican party (or the democratic party) is effectively impossible in our lifetimes. The two party - and these two parties specifically - system is baked into the state laws so deeply that it is an order of magnitude harder to put a non-party member on a ballot. Yes, it's doable at the presidential level, presuming you have enough money to deal with the ballot requirements across all the states, though you're still up against someone in a non-moribund party at that point."

The likely way it would happen is with 1) a fractured presidential election where a party rump played significant-enough spoilers to both lose and be effectively shut out of the rest of the party apparatus, i.e. a Bull Moose run; 2) that run ruining a major party's presidential chances due to spoilers, but coherent enough to win multiple local elections, including at least one senator and one governor; 3) enough cross-over voters to have a feasible coalition for the next presidential election; 4) winning the next presidential election.

It's not easy, but it's possible and if current trends continue, it will become more and more likely for the Republican party. I think that it's going to become more and more tenuous to maintain a coalition of big business and populist economic and racial resentment, along with the Evangelical social conservatives, who seem to be showing diminishing turnout (at least as far as what I've seen — I may be wrong). If the big business and white populist factions split, that means that you might see something like a big business coalition with pro-immigration and social conservatism, with maybe Southern Dems returning to the Democratic party and decreasing Democratic taste for immigration and racial equity programs, but increasing support for broad-based economic reform. Or maybe big business goes Dem and Dems become an even more urban-focused party, with social conservatives supporting more immigration for rural "values-voters" from Latinos. A Latino/white semi-capitalist party based on agricultural and rural resentment could probably be a winner for a bit, at least until we figure out a way to re-weight apportionment to stop overpacking urban districts. That kind of coalition would likely still accede to anti-black racism, but would be more circumspect around Latinos, especially religious ones. That Latinos tend to prefer a more interventionist government would mediate against some of the hardcore libertarian faction, probably resulting in more tepid support on the Dem side (bigger Yellow Dog caucus).

I mean, I think all of that is less likely than Republicans doubling-down on their broken coalition, remaining relevant at the state level and probably controlling redistricting for another cycle, then people getting sick of Democrats and voting for Republicans again, with the party establishment becoming less and less of a coherent force with the ability to actually promote a unified agenda beyond breaking shit, like some "Limp Bizkit Goes To Washington" parable.
posted by klangklangston at 3:13 PM on March 19, 2016

SCOTUSblog runs down some of the possible scenarios if Judge Garland's nomination is still pending into the fall.
posted by tivalasvegas at 3:35 PM on March 19, 2016 [1 favorite]

This Is the Real Reason the GOP Should Worry About Merrick Garland: "Merrick Garland has spent the last decade in the weeds of some of the most contentious clean-air cases in history—and he's consistently come out on the side of the environment and against big polluters."
posted by homunculus at 5:43 PM on March 19, 2016 [2 favorites]

This Is the Real Reason the GOP Should Worry About Merrick Garland

They should only be worried if they WANT the planet to become uninhabitable.
posted by Green With You at 8:31 PM on March 19, 2016

you say that like shareholders don't even matter
posted by prize bull octorok at 10:24 PM on March 19, 2016 [7 favorites]

General alert: if you've installed one of those browser extensions that changes Trump to Drumpf, it means when you quote people who mention Trump, you are misquoting them as saying "Drumpf," and then people get annoyed, and then mods get flags and emails to deal with, so consider turning that off, or at least changing the quotes back to the original phrasing. Thanks.
posted by taz (staff) at 4:41 AM on March 20, 2016 [17 favorites]

McConnell: No New Supreme Court Justice Until The NRA Approves Of The Nominee
posted by homunculus at 11:10 AM on March 20, 2016

How incredibly fucking tone-deaf. Even the Republican base doesn't care about guns nearly as much as they care about a whole raft of other issues!
posted by showbiz_liz at 11:25 AM on March 20, 2016

McConnell: No New Supreme Court Justice Until The NRA Approves Of The Nominee

Just because an article on the web has a misleading quote as a title, that doesn't mean one has to reproduce it verbatim.

McConnell's actual quote is "“can’t imagine that a Republican majority in the United States Senate would want to confirm, in a lame duck session, a nominee opposed by the National Rifle Association [and] the National Federation of Independent Businesses," which is quite far from an absolute statement that the NRA has final say on this matter.
posted by Brandon Blatcher at 12:22 PM on March 20, 2016 [7 favorites]

Brandon, the flip side is that it's easier to find out if a link has already been posted if they use the headline (which is normally supplied by an editor.) I usually try to add a more representative block quote if that seems to be an issue.
posted by ChurchHatesTucker at 5:47 PM on March 20, 2016 [1 favorite]

Quinnipiac University: Obama Gets Split Approval Rating, Highest In 3 Years, Quinnipiac University National Poll Finds; Senate Should Vote On Supreme Court Pick, Voters Say 2-1

American voters say 62 - 33 percent that the U.S. Senate should consider the nomination of Judge Merrick Garland to the U.S. Supreme Court rather than wait until there is a new president. Supporting action are Democrats 87 - 8 percent and independent voters 63 - 31 percent, with Republicans opposed 62 - 33 percent.

There is support for Senate consideration of Garland among men and women and among all age and racial groups listed.

Voters approve 48 - 27 percent of the nomination of Judge Garland. Again, Republicans are the only listed group opposed.

"He may never get the job or even get a chance to tell his story, but Americans think Judge Merrick Garland is the right person for the Supreme Court," Malloy said.

posted by zombieflanders at 8:09 AM on March 24, 2016

Yes Senators, you make 175K a year, at some point in the next 3 months could you please do your constitutionally mandated job, instead of announcing you won't, mere hours after the death of Supreme Court Justice? Thaaaaaaaaaaaaaaaanks.
posted by Brandon Blatcher at 8:30 AM on March 24, 2016 [1 favorite]

Who in the ever-living fuck are those 8 percent of Democrats?
posted by Etrigan at 8:33 AM on March 24, 2016 [2 favorites]

I have to assume they are conservatives who forgot or got confused about what the name of their political party is.
posted by Rock Steady at 8:38 AM on March 24, 2016 [2 favorites]

Consider also that a non-zero number of people are likely to just straight up lie in survey responses.
posted by tobascodagama at 8:46 AM on March 24, 2016

I think that to/alongside of the 27% crazification factor we can append an 8% trolling quotient.
posted by tivalasvegas at 9:57 AM on March 24, 2016 [2 favorites]

Actually, on a more serious note, I also think we need to consider the possibility that 8% of Democrats are just straight-up racist enough to deny Obama's legitimacy as a President. Why those people still identify as Democrats, I can't tell you, but it doesn't help anybody to pretend that people like that cannot exist.
posted by tobascodagama at 10:17 AM on March 24, 2016 [2 favorites]

Yeah, Kim Davis was a Democrat up until a few months ago. I guess there's still some Yellow Dog types out there.
posted by Etrigan at 10:25 AM on March 24, 2016 [2 favorites]

Who in the ever-living fuck are those 8 percent of Democrats?
posted by Etrigan 2 ¾ hours ago [+] [!]

I have to assume they are conservatives who forgot or got confused about what the name of their political party is.
posted by Rock Steady 2 ½ hours ago [+] [!]

Or eastern shore Marylanders. Now that I have been exposed to the weird breed of MD dems who should not in any universe be registered as dems I am kind of amazed the percentage of WTF is that low - this can't be a disease unique to this area. I think we talked about party identification as personal identity in an earlier thread. It's a very real and very weird thing.
posted by phearlez at 11:20 AM on March 24, 2016 [4 favorites]

Yeah, Kim Davis was a Democrat up until a few months ago. I guess there's still some Yellow Dog types out there.

A friend of mine from Dothan tells me that he grew up around people, including some still alive, who were Democrats because Lincoln was a Republican. It's bizarre to think of that as still existing post-Southern Strategy.
posted by Pope Guilty at 3:55 PM on March 24, 2016 [3 favorites]

The thing about coded messages is that not everyone understands the code. That said, it’s surprising that something like that still exists after the Dixiecrats, since that was pretty darned explicit.
posted by Going To Maine at 4:12 PM on March 24, 2016 [1 favorite]

Dara Lind at Vox: There hasn’t been a criminal defense lawyer on the Supreme Court in 25 years. That’s a problem.
posted by larrybob at 2:07 PM on March 28, 2016 [3 favorites]

The Rude Pundit: On the Continuing Need to (Rhetorically, Of Course) Punch an Old Man in the Nuts (Orrin Hatch Edition)
posted by homunculus at 3:50 PM on March 28, 2016 [3 favorites]

the southern democrats in mostly name only that i know don't have any grand philosophy behind it, it's just that down here there's not a lot that splits the two parties. in the midterms i had to triple check that a candidate was a democrat because of what a high score he got with the nra, and anti-choice/homophobic religious groups. and this makes it hard to gotv because actual progressive dems rightly think a lot of our dems are siding w/ the gop in the state capital and washington anyway.
posted by nadawi at 4:29 PM on March 28, 2016 [3 favorites]

Supreme Court deadlocks over public employee union case; Calif. teachers must pay dues

The Supreme Court on Tuesday said it was unable to resolve a major challenge to organized labor, and the result was a defeat for a group of California teachers who claim their free speech rights are violated when they are forced to pay dues to the state’s teachers union.

The court said it was split 4 to 4 on the issue, following the death of Justice Antonin Scalia. It was the most important case yet in which the eight-member court was unable to reach a decision.

[...]

When the court is evenly split, it affirms the decision of the appeals court that considered it. In this case, the U.S. Court of Appeals for the 9th Circuit said it was bound by the Abood decision and turned down the challenge.

Public unions saw the split decision as a victory.

While a few challenges have been dropped following Scalia's death, this is the first deadlock.
posted by zakur at 10:40 AM on March 29, 2016 [1 favorite]

A "hung judiciary", if you will.
posted by Going To Maine at 11:51 AM on March 29, 2016

How We Can Sort Out This Supreme Court Mess: Tacit consent! Or, Garland could just suit up and act like he owns the place.

The Reverse Bartleby: A modest proposal for how Merrick Garland can outfox Republican obstructionists.
posted by homunculus at 11:27 PM on March 30, 2016 [3 favorites]

“I prefer to.”
posted by Going To Maine at 11:35 PM on March 30, 2016

"It is generally assumed that the Constitution requires the Senate to vote to confirm the President's nominees to principal federal offices. This Essay argues, to the contrary, that when the President nominates an individual to a principal executive branch position, the Senate's failure to act on the nomination within a reasonable period of time can and should be construed as providing the Senate's tacit or implied advice and consent to the appointment. On this understanding, although the Senate can always withhold its constitutionally required consent by voting against a nominee, the Senate cannot withhold its consent indefinitely through the expedient of failing to vote on the nominee one way or the other. Although this proposal seems radical, and certainly would upset longstanding assumptions, the Essay argues that this reading of the Appointments Clause would not contravene the constitutional text, structure, or history. The Essay further argues that, at least under some circumstances, reading the Constitution to construe Senate inaction as implied consent to an appointment would have desirable consequences in light of deteriorating norms of Senate collegiality and of prompt action on presidential nominations."

A "No means no," standard. Republicans will argue consent requires affirmative enthusiastic consent.
posted by Drinky Die at 3:52 AM on March 31, 2016 [6 favorites]

A "No means no," standard. Republicans will argue consent requires affirmative enthusiastic consent.

Is there a single other political institution that permits 'implied consent'? Legislators propose bills all the time that never make it out of committee or see a vote. I guess those are all laws now, too.
posted by dis_integration at 7:14 AM on March 31, 2016 [1 favorite]

A "No means no," standard. Republicans will argue consent requires affirmative enthusiastic consent.

Is there a single other political institution that permits 'implied consent'?

The Constitution does, in the case of laws:

If any Bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a Law, in like manner as if he had signed it, unless the Congress by their Adjournment prevent its return, in which case it shall not be a Law.

This may be an "exception proves the rule" situation -- because the Constitution specifically delineates a particular situation where silence is consent, it means that there are no other situations where silence is consent.

The latter part of that clause is the "pocket veto", and Congress routinely leaves a designated person in place when they adjourn to prevent it from happening.
posted by Etrigan at 7:22 AM on March 31, 2016 [2 favorites]

A "No means no," standard. Republicans will argue consent requires affirmative enthusiastic consent.

Which feels like a strange bizarro world until you remember that a woman is not the party whose consent is in question.
posted by tobascodagama at 8:50 AM on March 31, 2016 [1 favorite]

The Supreme Court Just Did Something the Supreme Court Shouldn't Have to Do
posted by homunculus at 12:33 PM on March 31, 2016 [2 favorites]

George Mason Law Changing Name To Antonin Scalia School Of Law
posted by homunculus at 1:03 PM on April 1, 2016

From the above link.

Amazingly, this is not an April Fool’s joke

Because it needs to be spelled out today. (tl;dr, Koch Bros.)
posted by ChurchHatesTucker at 2:31 PM on April 1, 2016 [1 favorite]

#ASSLaw
posted by tobascodagama at 2:36 PM on April 1, 2016 [4 favorites]

#ASSoL surely?

Mason has a fancy "School of Law" rather than silly places like Yale or Vanderbilt with their déclassé "Law Schools."
posted by anotherpanacea at 7:38 AM on April 2, 2016 [4 favorites]

Fair point! And it turns out you are not the first to observe this.
posted by tobascodagama at 9:02 AM on April 2, 2016 [1 favorite]

"Justice Peckham ... was the last Supreme Court justice nominated by a Democratic president — Grover Cleveland — and approved by a Republican-controlled Senate, a step taken in 1895, and on a voice vote, no less.

"While Democratic-controlled Senates have considered and approved 13 Supreme Court nominees by Republican presidents since 1895 — the most recent in 1991 — contemporary Republicans have never faced that prospect and have no experience doing so, a fact that might help explain their extreme reluctance to even take up President Obama’s choice for the court, Judge Merrick B. Garland."
posted by krinklyfig at 4:16 PM on April 2, 2016 [4 favorites]

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