Fill The Vacancy

Trump is under no obligation to wait ’til the election. He should not.

There are two types of rules in Washington: laws that allocate power, and norms that reflect how power has traditionally, historically been used. Laws that allocate power are paramount, and particularly dangerous to violate, but there is no such law at issue here. A president can always make a nomination for a Supreme Court vacancy, no matter how late in his term or how many times he has been turned down; the only thing in his way is the Senate.

Twenty-nine times in American history there has been an open Supreme Court vacancy in a presidential election year, or in a lame-duck session before the next presidential inauguration. (This counts vacancies created by new seats on the Court, but not vacancies for which there was a nomination already pending when the year began, such as happened in 1835–36 and 1987–88.) The president made a nomination in all twenty-nine cases. George Washington did it three times. John Adams did it. Thomas Jefferson did it. Abraham Lincoln did it. Ulysses S. Grant did it. Franklin D. Roosevelt did it. Dwight Eisenhower did it. Barack Obama, of course, did it. Twenty-two of the 44 men to hold the office faced this situation, and all twenty-two made the decision to send up a nomination, whether or not they had the votes in the Senate.

Threats are all the Democrats have – until the next Senate sits. And then, only if they take control.

30 thoughts on “Fill The Vacancy

  1. I’ve heard a bit of squeaking from “conservatives” in my wide circle of acquaintances, regarding the danger seating another right leaning justice will put America in if the leftists get back into power.

    My response is simply “What do you fear they will do if Trump seats another justice that you believe they won’t do, or try to do otherwise?

    Leftists want to gut the US Constitution (electoral college; 1st and 2nd amendments; federal control of immigration), and they fear their chances will be lost for generations if a constitutional conservative is seated. And it will be. So what could they do that’s worse if such a person is seated?

    We have the means to accomplish something good that will last many, many years. Only a blithering fool would hesitate for a second; grow a spine.

  2. The only reasonable argument I can see against seating before the election would be the belief that it would affect voters’ opinions enough to move Trump from winning the election to losing it.

    That’s not something I believe.

  3. Because power should be the only measure by which politics are evaluated. He who has the gold, makes the rules.. eh Mitch?

    Be careful what you wish for. Your party is an increasingly vanishing minority, as Neil Gorsuch pointed out. If you lose control, you may have your tenuous grasp on any power, any check, removed for a very, very long time.

  4. Also Mitch, be clear, if the Dems win the Senate they are going to do one of two things.

    First, impeach Gorsuch (less likely but still entirely justifiable, after all, thems that gots the gold makes the rules)

    Second, expand SCOTUS to make any one seat MUCH less important.

    I favor both. I favor treating the scum GOP like the scum it is. You all have relied for decades on the decency of the Dems to live to policy and process. You held up Obama’s picks for months using the filibuster until FINALLY they had enough and changed the rules, then you used that change against them. Well, turn about is fair, and after all, who the hell cares about fair, right? You obviously don’t.

    So, I say, kick the GOP (especially the traitorous reactionaries) right in the ass. Drub them with how power works. The saying goes, when you play the Game of Thrones, you play to win.

    So be it.

  5. I wonder Mitch, how you felt about Merrick Garland. Did you feel Obama should have been able to appoint him?

    After all, the LAW said he should but seditious McConnell didn’t put it to a vote.

    Obama should have shuttered the Senate – shut down all business until McConnell did put it to a vote. THEN if McConnell still didn’t move, he should have simply appointed Garland. After all, the LAW says “advise and consent”, if they refuse to advie, they’ve abdicated, so move ahead. Get SCOTUS to rule on moving ahead. I’m pretty certain they (the then 8 members of SCOTUS) would have either a. deadlocked, returning a decision of “no decision” and that would have meant relying upon the lower court, a court selected by Obama – so he’d have won, or b. agreed with Obama.

    So yes, naked power, get out the knives, prepare to stab each other in the heart. THAT’s what your party, especially your wing of the party has fantasized about for decades, well, it’s coming, and you are in the minority. So get ready. Your attitude of F your neighbor is going to be held up against you and you will be found wanting.

  6. BTW, to be clear, I think this outcome is HORRIBLE, it’s a tragedy. You righties are like the dead-ender idiots of the south. Advocating for a war that will tear the nation apart quite simply because you HAVE TO HAVE YOUR WAY, even though you are in a minority. You are ready to kill, literally, not figuratively, to get it, and it’s obvious.


    Based on this, you’ll lose the Senate. Get ready for being on the receiving end of what no longer being in control looks like.

    We’ll end the filibuster, not just about nominees, ENTIRELY. We’ll add 47 seats to SCOTUS (nah, not really, but we might add 3).

    Get out the guns – start shooting, you know you want to. Trump is going to lose, and it very likely won’t be close. Crazy conspiracy theory, fact denialist freaks.

    You guys have been saying “he/she” is the most extreme-left candidate for 30 years, it’s never been true. However, you voted for a fascist, personality cult candidate in Trump who doesn’t believe in the rule of law. Hypocrisy is your raison d’etre. He truly was the most right-leaning candidate, not on policy precisely but definitely on demolishing democracy. Congrats, you got what you deserved.

  8. I’m always happy to see a p-boy comment (or four) because he always reinforces the notion that people like him hate us of the right and want us dead, imprisoned, or enslaved. All the while feigning how sorry they will be (to work) to kill, imprison, or enslave us.

  9. The Senate did not consent to Garland, (PBUH). That is all there is to it. You can fail to give consent by saying, I don’t consent (i.e. hold a vote and reject the nominee) or you can simply fail to answer the question, do you consent? (Not holding a vote on the matter)

    Obama knew these rules. He dodged them with the Paris Accords by never asking for consent of the Senate, which he did not expect to get. But then that allowed his successor to withdraw from them without the consent of the Senate as well.

    Maybe if Obama had nominated Kavanaugh, the Senate would of held a vote. A lame duck President has never had the ability to achieve an appointment of a candidate in his last year with out question. If you expect to get consent, you have do pick someone who is as close to the center as possible.

    Would Garland be better off if the Senate had voted no?

  10. Historical reference, for Paddy’s benefit, is that when the Senate is controlled by the opposition party, nominees generally do not get confirmed in an election year, but they do if the President is of the same party. There is nothing new here.

    Regarding the notion that the GOP is a rapidly disappearing demographic, doubtful, as the polls have shifted rapidly as Democratic mayors and governors have let rioters run amuck. People who otherwise would have voted for Democrats realized that “their party” didn’t have their back, and so they rightly turned their backs on them. They will continue to do so as they hear nonsense things from Joe Biden like using the Compton police shootings–done with a handgun–as an excuse to ban semi-auto rifles, or as they “forget” the words to the Pledge of Allegiance, or as they move to de-fund the police, and the like.

  11. BTW, Paddy-ze, really enjoy how you endorse kicking the GOP “right in the a**”, and then you have the chutzpah to suggest it’s the GOP picking the fight. Look in the mirror, buddy. Look in the mirror.

    And a historical reminder; when it was conservatives hitting the streets, they didn’t need riot police like liberals do. Heck, they didn’t even need anyone to pick up trash after them. Again, if you want to see someone prone to violence, look in the mirror.

  12. “He should have been able to appoint him…”. It’s called “nominate”, clown boy, and that’s what he did.

  13. “After all, the law said he should be (appointed), but the seditious McConnell didn’t put it to a vote.” As said elsewhere, you don’t appoint them, you nominate them, and Obama did that very thing. And nowhere does the “law” say that the Senate has to consider the nomination. So McConnell was being “seditious” by following the Constitution? Got it.

  14. Like Emery, I’m betting Paddywhacker was the toughest kid on his block, behind his mommy’s apron. He’s a real tough guy when he’s on his keyboard.

    By the way, Paddy, I’m just wondering how willing you are to die for your communist and anti American ideals? I predict that if your butt wiping heroes do start a civil war, it will be very short and it won’t end well for you turd buckets.

  15. He did make one useful point, though. He admits Democrats intend to further distort the role of the Supreme Court by inflating its size again, which will make it less like a judicial body and more like a super-legislative body. Nice to hear confirmation that Liberals hate the Constitution and want to undermine it any way they can. Helps clarify the stakes.

  16. JD, good points.

    I think it’s worthwhile to mention that “liberals”, the left, progressives have basically always hated the Constitution and wanted to undermine it anyway they can. The first court packing scheme that I know of happened in the 1930s.

    But undermining can also mean amending. The 17th Amendment, for example. Hell, the 18th and the (whoops, we kinda screwed up) 20th. These are from the early 1900s.

    And then simply ignoring Amendments. Like the 10th. Or expanding the jurisdiction of the Commerce Clause like a balloon figure to be anything you want (thanks to Night Writer for that metaphor).

    I think the only thing unique about today’s proggies is how little it takes for them to jump into the next attempt at sabotage.

  17. Wow. Padded room boi is triggered bigly. I take that to mean Trump’s winning is really starting to stir the swamp water. That’s good. Kind of tired of them leaning on a twisted definition of “humanity” and “decency”.

    Let’s get it all out on the table, padded room boi. Give us a list of all the plots and plans you degenerates have floating around in your cartoon bubbles. Normalization of pedophilia; 90% taxation; mandatory study of the Communist Manifesto in public schools; a “reinterpretation” of the first amendment that precludes “hate speech” as defined by the central committee on acceptable opinions; banning private schools and homeschooling; public abortion centers; gender assignment done according to quota at birth, surgical modifications paid for through taxes; confiscation of all firearms through house-to-house searches.

    We’ll make recruiting posters from them.

  18. Yes the hypocrisy is there for all to see.

    That said, why should Trump or the Republican Senate wait until after the election — this is their chance to make their mark. Why would they give it up and risk letting the Democrats getting the chance, it’s not as if the Democrats would have passed over the chance had the roles been reversed.

    Trump’s goal will be to turn the confirmation process into a spectacle, diverting attention from his failed COVID response. Democrats must not fall into this trap. Criticize the nominee’s conservative stance, but don’t get bogged down in a Kavanaughesque show.

  19. If next week’s debate turns out to be 1/2 the debacle for Sniffin’ Joe as it’s shaping up to be, I’m guessing Padded Room Boi will manage to knock himself out despite the padding.

    I think the post celebrating Biden’s epic failure the morning after (I think it will be the end of his campaign) should feature a comment thread just for PRB. He’ll wake up on the floor, covered in his own excrement, a fat lip and lumps all over his head, fairly bursting with dark despair. Let the insanity, hate and despair flow from him like water.

    Maybe let the other peanut butter cup here ^^ chime in, too. I know these lunatics, it will be really fun, you’ll see.

  20. I’ll bet you a brand-new nickel Democrat opposition to Amy Barrett will boil down to fear that she may decide Roe v. Wade was wrongly decided and should be overturned, leaving abortion as an issue to be decided by the states. This will be sufficient for two RINO women in the Senate to vote against her in order to protect their constituants’ right to kill unborn children.

    I’ll bet you a second nickel (not a new one) that Democrats will demand a religious test for public office, a maximinum limit on the number of Catholics on the court. This will impress urban white sophistocates and their friends in the KKK while potentially peeling off Cathlic voters from ‘devout’ Joe Biden.

  21. I understand Amy Coney Barrett is the favorite among pundits. But I suspect Trump is calling around, trying to figure out which pick would most advantage his campaign. I suspect he’s already decided on Barbara Lagoa in a Florida/Miami play.

  22. I suspect those 2 RINO traitors are actually voting in their own best interests, that is to say I think they are secret abortion lovers.

    But I don’t get the fuss. Like you say, overturning RvW just means everyone gets to choose…and “choice” is what it’s all about, right? The slaughter will continue unabated in lefty shitholes; hell, they can and most likely will have their residents pay for it.

    I guess it boils down to them knowing they won’t be able to pull off the outright rape of the Constitution like that again for anything else for at least 40 years. It also means the end of the death by a thousand cuts lefty shitholes have been inflicting on the 2nd amendment. As of a month ago, California can’t limit the amount of ammo a magazine can hold…that had to hurt.

  23. A fight over the personal qualities of the nominee would be a disaster for the Democrats. There’s plenty to work with on policy consequences. The policy consequences are the meat and potatoes of this vacancy. Trump will nominate an ideologue no matter what.

  24. You’re not very bright, are you? Policy consequences mean fuck-all to the vetting process. In order for Mephistopheles minions to quash the nomination, they’d have to prove her guilty of malfeasance, or unqualified. They can’t even go with the high school gang rape smear this time…too bad.

    Not going to happy skippy. Your friends can scream, beat their chests and tear their hair (and I hope they do); won’t matter. Right winger in Ginsburg’s seat by Halloween.

  25. EI, yes, a fight over the personal qualities of a nominee would be a disaster for the Democrats, but….that hasn’t stopped many of them from attacking some of the prospective nominees based on Catholic faith. Just sayin’.

  26. The Supreme Court, and the rest of the federal judiciary, is a product of the Senate. The Senate completely shields the Supreme Court from the tides of popular opinion and has done so for 230 years. Despite a crushing Civil War victory, the 13th, 14th, and 15th amendments to the Constitution, the Senate was able once the Southern States came back into the Union in the early 1870s to create through the Supreme Court a complete jurisprudence built around landmark court cases that the Constitution didn’t mean what it said it did. This was the basis for an additional century of oppressive segregation and extreme economic exploitation and social subjugation, many of whose aspects continue and many of whose aspects are now being re-imposed upon America by the federal judiciary.

    The Senate only partially governs as one house in a two-house bicameral legislature increasingly dysfunctional. It much more often now operates as the managing partner of a duopoly constituting itself and the federal judiciary. The federal judiciary’s job is to enforce the privileges of property and in particular to support policies supporting wealth concentration in the hands of a very powerful few regardless of public opinion. The plutocracy has the Senate on retainer to support a very narrow policy objective with total focus and ferocity — that of wealth concentration, a concentration so sweeping in its power that it can control all levels of government while remaining beyond the view of scrutiny and the reach of reform. As anyone with a passing knowledge of American history can attest, wealth has always controlled state and local governments with high effectiveness over the nation’s history. FDR’s New Deal created a half century where the federal government was something of a countervailing power to concentrated wealth, but that era ended early in this century. (Bush’s tax cut reducing the tax rate on dividends and capital gains to one-third of those on earned income drove a silver stake through what little egalitarianism there was in the America.) Today’s 21sst century yields nothing to the 19th century when it comes to cupidity. Only in America is social democracy in retreat among the advanced capitalist democracies. Indeed, America is exceptional!

    As to the supposed power of general culture, the plutocrats chortle and may ask as Stalin did of the pope, “How many divisions does it have?” Are not the skies still open to executive jets?

    The US Senate is deeply nondemocratic and with its capture by the forces of concentrated wealth it is increasingly anti-democratic and more resistant to both the formal voting of the majority of the citizens of the United States and its weak sister public opinion than any other legislative body among the advanced capitalist democracies in the world.

    Senator McConnell shows his scorn for the public opinion of the people of the United States everyday. He knows for how much they count in today’s Washington. This election is not going to change that. Only substantive structural reform of the US Senate will create a legislative body in Washington DC able to respond constructively to the challenges of the 21st century. This century may force structural correction on a deeply flawed 18th century document. The Federalist Papers described the Senate as a “lesser evil” that had to be accepted so as to have a federal government. The evil part of that bargain is starting to catch up with that government.

  27. Emery I, maybe….before you claim that the Supreme Court is a creation of the Senate….you ought to consult Article 3 of the Constitution? Just sayin’; if you start with BS, we’re not going to assume your keyboard incontinence is going to get any better.

    (which college freshman’s history paper did you plagiarize?)

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