Yes, The Senate Can Confirm a New Nominee Before The Election

I was on CBS News today with my friend Kim Wehle on the replacement of Justice Ruth Bader Ginsburg.  There is a legitimate debate over whether a president should wait for the next election for such a nomination to move forward. However, I disagree with Wehle that a nomination would be unlikely given the roughly 40 days left before the election. The Senate could move this nomination in that time and, judging from some past nominations, even have time to spare without setting a record.

Kim Wehle is clearly correct that the average for nominations is roughly 60 days.  However, the Senate confirmed Justice John Paul Steves in 19 days.  Sandra Day O’Conner was confirmed in 33 days and Ginsburg herself was confirmed in 42 days.  Wehle was expressing doubt that such a short confirmation is possible in this environment and she could be proven correct. However, such speedy confirmations are more common when the Senate is held by the same party as the President.  If Majority Mitch McConnell wants a vote, I do not see how the Democrats can derail it without additional defections from the GOP bench of senators.  The issue is not the hearings but the scheduling the floor vote. However, all things are possible when political stakes are high.

Moreover, most presidents have not waited for the election. This would be the 30th such nomination in an election year.  I have no doubt that if the Democrats controlled the Senate with a Democratic president, they would be moving a nomination forward. Indeed, that was their position in 2016.

There is no question that there is a tsunami of hypocrisy from both parties this week. However, this weekend Chuck Todd exclaimed in disbelief when a Republican senator referred to the “precedent” for such nominations. Todd declared in disbelief “what precedent?!”  The answer is that most presidents have made nominations in election years. Waiting to fill a slot is the exception to that precedent.

Indeed, in 2016,Justice Ginsburg swatted down arguments that a President should wait until after an election.  She stressed that it is the “job” of the Senate to fill such slots and noted “There’s nothing in the Constitution that says the president stops being the president in his last year.” Likewise, Justice Sonia Sotomayor insisted that the Senate should not leave the Court with just eight members, stating “Eight is not a good number. I think we hope there will be nine [justices] as soon as possible.”

Again, there are good-faith reasons to wait for an election and senators are clearly allowed to vote on that basis. However, if a president nominates before an election, I believe that Senate should give that nominee a vote.  That was my position with Merrick Garland and it is my view today.

357 thoughts on “Yes, The Senate Can Confirm a New Nominee Before The Election”

  1. “That’s their job.”

    “There’s nothing in the Constitution that says the president stops being president in his last year”

    – Ruth Bader Ginsburg

  2. Article 1, Section 2

    The President…shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court,…

  3. That was my position with Merrick Garland and it is my view today.

    Garland was treated perfectly courteously. The Senate is under no obligation to advise or consent and judicial nominations expire routinely. Harry Reid and his minions had no compunction about holding up nominees for years and did so.

    Partisan Democrats pretend the excuses offered by McConnell and others the last time around are of great moment. They are merely politicians behaving in an unedifying manner. Shadow Pelosi and Schumer and you’ll catch them being unedifying 6x before breakfast. I wish we had better human beings in public office, but we do not.

    Now, in January, in March, it doesn’t much matter from the standpoint of procedural fairness. The humbug this time is Sleaza Murkowski (R – Her Daddy). She is nothing if not unedifying. Every single time.

  4. i am going to go out on a limb here and say that Book, Isaac, Natacha and the rest of the usual suspects have not dealt with Trump’s victory particularly well.

    Remember, Barack Obama said to Republicans “Elections have consequences. I won.”

    1. One does not “react well” to the country being run by a lying scumbag who thinks only of himself and has purposefully FU the most important crisis he has faced. Your cult obeisance – there is no GOP platform this year, if you need reminding – is not “reacting well” either.

      1. Don’t know much about history
        Don’t know much biology
        Don’t know much about the civics I took
        But I call myself ByTheBook
        And the groujp knows that I’m a fool
        But I think that I’m so very cool
        It’s so wonderful to be me

  5. “I have no doubt that if the Democrats controlled the Senate with a Democratic president, they would be moving a nomination forward. Indeed, that was their position in 2016.”

    Garland was nominated in March, not September, so it’s not analogous.

    The difference in 2016 wasn’t in whether a President would nominate someone (historically, they have nominated replacements in election years), but in McConnell’s refusal to have a vote. And the difference now isn’t that Trump would nominate someone, but in McConnell’s desire for a quick vote.

    As I wrote elsewhere:

    McConnell’s choices with respect to SCOTUS nominations were/are legal. But his choice with Merrick Garland was an act of cowardice: Republican Senators were afraid of having to publicly vote on Garland and be held accountable for their votes in the upcoming election.

    The Trump supporters here have been referencing a National Review article that says “Historically, throughout American history, when their party controls the Senate, presidents get to fill Supreme Court vacancies at any time — even in a presidential election year, even in a lame-duck session after the election, even after defeat. Historically, when the opposite party controls the Senate, the Senate gets to block Supreme Court nominees sent up in a presidential election year, and hold the seat open for the winner.”

    But what neither the article nor the Trump supporters here can admit is that McConnell’s choice not to hold a vote was an act of cowardice. It’s not nearly as common for the Senate to allow a nomination to lapse (which is what occurred with Garland) as it is for the Senate to reject or confirm the nominee in a vote. And McConnell was afraid that Garland wouldn’t be rejected in a vote.

    The article falsely claims “the Republican majority did not even hold a hearing for an outcome that was predetermined,” when it wasn’t predetermined. McConnell was afraid of putting Republican Senators in the position of actually having to make a choice. He was afraid of defections, and he was also afraid that some of those who’d choose to vote against Garland and were up for reelection might then lose.

    And the reason that he and other Republicans are looking like hypocrites now is because they weren’t honest about what was going on at the time. No surprise, lots of politicians aren’t hones, and that’s not limited to Republicans. But it’s then also not a surprise when they’re called out for their dishonest and hypocrisy.

      1. Dingy Harry removed the 60 vote cloture rule on executive branch nominations, not the Republicans. He started the nuclear exchange.

      2. The real story is that Democrats left GWB’s nominations hanging in limbo in committee for record lengths of time. Others they set new records in filibustering. When Obama was a Senator he voted to filibuster Alito.

        During Obama’s presidency Republicans regained control of the Senate. They played by Democrat rules and both filibustered Obama’s nominees and left them hanging in committee. Only longer.

        Democrats didn’t like having to play by the rules they played by when GWB was president. So Reid nuked the filibuster for lower court judicial nominees. He rigged the system because he believed Democrats would benefit from installing left wing activists judges they hoped would rubber stamp their abuses.

        Reid and Democrats did not nuke the filibuster for SCOTUS nominees because they could not benefit the party by doing so. There were no SCOTUS vacancies.

        As always, you are a dishonest hack.

  6. Ignore the Bork and Thomas confirmations, I wish it were like back in the old days. Ginsburg was nominated to the court with only 3 dissents, even though the Republicans weren’t crazy about her. Why can’t the nominations be that way again instead of little to no crossing of party lines and having abortion/Obamacare hysteria and litmus tests.

    1. Bork and Thomas were radical and/or unqualified. Arther Kennedy followed Bork and was approved quickly and with little defection. Senators expect sand respect nominees who reflect the tendencies of the party the president represents, but not radicals and committed ideologues on either side.

      1. Bork and Thomas were radical and/or unqualified.

        They were neither, of course.

        Bork was an accomplished legal scholar, quondam Solicitor-General, and a judge on the DC Circuit of the Court of Appeals. If he was unqualified, they all were. Thomas was also elevated from the DC circuit, though he’d had less time there (though just as much time as an appellate judge as had Sandra Day O’Connor). His experience in trials had been in administrative agency adjudication. If that makes him unqualified, so was Wm. O. Douglas. NB, Elena Kagan, Wm Rehnquist, Lewis Powell, and Robert Jackson had no history on the bench. Hugo Black’s consisted of a couple of years as a justice of the peace. You can try to argue that Thomas’ intellect is inferior to the man he replaced, but you’d make a fool of yourself.

        NB how gliberals and leftoids define ‘radical’: the notion that appellate courts should be deferential to democratic choice unless there is clear warrant in text and history for them to not defer. In the liberal ‘mind’, you’re a radical when you tell liberal lawfare artists to make their case to legislatures.

        1. Eric Kleefeld: “Bork was voted down by a majority of the Senate (including a number of Republicans) for his career-long opposition to civil rights laws, and attempt to shut down Watergate.”

          1. Nobody gave a rip about his dismissal of Archibald Cox except reporters. It was a talking point. Both you and Eric Kleefeld are also mischaracterizing what he did do. No surprise there.

            And, no, he didn’t have a ‘career long opposition to civil rights laws’. There is nothing wrong with critiquing civil rights laws, but he did not make a career of that. The entire focus of the hearings was an article he’d written for The New Republic in 1963 commenting on pending legislation proposed by the Kennedy Administration. His arguments were familiar (derived from libertarian principles and common understandings of freedom of contract) and not original.

            1. DSS, I seem to remember Bork had some specialized knowledge that most on the Supreme Court lacked at the time so along with his excellent qualifications he could have added another dimension to the court.

              The dems went crazy and disgraced their party and the political process.

                1. Thank you. You were really interested in politics. I never had the time to delve outside of very specific interests. I think such workers are more likely to vote for Trump but less likely to be involved on a percentage wise basis regarding the entire population able to vote. That is a pure guess.

          2. Bork was voted down not because unqualified rather one suspects he was voted down because he was very qualified just not the way reporters like

            They especially dislike his First amendment scholarship which of course was rock solid– and thus precisely why they hated him. One supposes one of many reasons

            The press are the lying scum we need to worry about these days

      2. Still on the Kool-Aid I see. Who was ‘Arther” Kennedy? There was a SC associate judge named Anthony Kennedy. You should try reading comprehension skill improvement but I doubt it would accomplish much for you.

        1. a) Reading and spelling aren’t the same thing. Some people have trouble with one, some with the other, some with both (like Trump), and some with neither.
          b) Literate people sometimes post typos, and the commenting system here doesn’t allow corrections. Turley wrote “Sandra Day O’Conner.” It’s not because he lacks “reading comprehension skill.”

      3. Bork was unanimously confirmed by the Senate for his DC Circuit seat – often referred to as the second highest court in the federal judiciary. The Senat confirmed him to be Nixon’s Solicitor General. He was a professor of law at Yale. The American Bar Association gave Bork its highest “well qualified” rating when he was being considered for confirmation to the SCOTUS.

        Thomas was a Yale Law School graduate. He was easily confirmed by the Senate to take Bork’s seat on the DC Court of Appeals. The ABA gave Thomas a “qualifed” rating for his Supreme Court nomination.

        As always, you are a dishonest hack.

        1. I ddn’t say Bork wasn’t smart and accomplished. I said he was a radical crackpot who fired Archibald Cox because Nixon told him to. Nothing you have posted contradicts my statement.

          1. LOL. You falsely claimed Bork was unqualified. The ABA gave him its highest “well qualified” rating. Plus, not a single Senator opposed his confirmation to the DC Appeals Court.

            As always, you are a dishonest hack.

          2. I said he was a radical crackpot

            We hear you. That judgment is unreasonable. No one remotely familiar with Bork’s writings would call him a radical or a crackpot.

      4. Book, so wrong. Bork was supremely qualified. My ACLU constitutional law teacher observed that to our class in so many words. “And yet’ it is a political process. like it or not

  7. Screw the threats from the Dems to pack the court. Such a move starts a civil war. The same goes for the threats to make Puerto Rico and DC into states. They even want to give citizenship status to every illegal alien.

    If the Dems wish to start a civil war, then that’s on them alone. We’re ready, willing, and able.

    1. “Such a move starts a civil war. ”

      No it doesn’t.

      southpaw: “This would not be, in fact, “total war.” If it happens, it would be using the express provisions of the constitution to try to create a more perfect republic. It would be the slow train coming in. It would be reform.”

      Mark Joseph Stern: “Granting congressional representation to the roughly 700,000 American citizens who live in DC (including me) is not “total war.” It is a vindication of the most basic principles of democracy.”

      1. Good luck…they’re all empty threats. If you put a gun to your head and threaten to pull the trigger why should I care? Puerto Rico and DC will never become States. I doubt Maryland or Virginia would take your lot in as well. Packing the Supreme Court doesn’t work either because it all gets reversed when the Republicans take control. Really, all you’re doing is having a sissy fit. Dream on, child.

        1. LOL that in your first comment you claimed “Such a move starts a civil war” and now you claim “they’re all empty threats.”

          Apparently you claim whatever you find convenient in the moment. Trump does that too.

          1. Watch it CTHD! Ivan told us he is a leftist disillusioned with Democrats and so found a home with Trump. Sadie Mae’s story too! How confused do you have to be to confuse personality cults with principle while not understanding the choice is binary and not a la carte? Ask Jimmy Dore.

    2. In black letters, Congress has the authority to admit new states. The thing is, four of the six dependencies have populations and income flows so low that they resemble a typical non-metropolitan county more than they do a typical metropolitan county, much less a state. They also have eccentric populations chock-a-block with indigenes, the descendants coolies from from the Far East, and the descendants of Caribbean slaves. In re the other two, Puerto Rico is a foreign country with a l/t contractual relationship with the United States (which has gone badly awry). DC is a fragment of a metropolitan settlement which is as we speak 6x as large; admitting Manhattan as a state would be an act with more justification. If we were serious, we’d pass a constitutional amendment which would offer the smaller dependencies a fractional vote in the House in certain contingencies, retrocede the District to Maryland, and kick off the process of preparing Puerto Rico for full sovereignty. The Democrats won’t consent to that because it’s all about feeding their vote farm.

      1. “Puerto Rico is a foreign country”

        No, it isn’t.

        “DC is a fragment of a metropolitan settlement”

        No, it isn’t. And your comparison with Manhattan is ridiculous. The residents of Manhattan have voting representation in Congress, and the residents of DC do not. The population difference is a red herring. CA and WY are each a single state, despite the population of CA being over 68 times the population of WY.

        “retrocede the District to Maryland”

        You cannot do that without Maryland’s permission. States’ rights, you know.

        “kick off the process of preparing Puerto Rico for full sovereignty.”

        LOL, the GOP in 2020 chose to keep their 2016 platform, which literally says “We support the right of the United States citizens of Puerto Rico to be admitted to the Union as a fully sovereign state.”

        “The Democrats won’t consent to that because it’s all about feeding their vote farm.”

        Republicans used to advocate for states’ rights, and they currently advocate Puerto Rican statehood. Maybe you’re confused.

        1. No, it isn’t.

          I gather your handlers at Correct-the-Record told you to be reflexively oppositional. It makes you sound stupid.

          Puerto Rico is a Hispanophone country with a racially mixed population. Its real income per capita is 60% below the mean of the Mainland, which is one source of it’s political and economic problem. It was only around 2010 that Panama’s population surpassed Puerto Ricos, btw. It is a foreign country with an eccentric dependency relationship with the United States. There is no juridical dependency in the world today with a population or productive base anywhere near Puerto Rico’s. Puerto Rico has been the world’s most populous dependent territory (bar one) since 1975. The only place whose population exceeded it was Hong Kong, whose status as a British dependency was the result of a literal lease agreement.

          “DC is a fragment of a metropolitan settlement” No, it isn’t. And your comparison with Manhattan is ridiculous. The residents of Manhattan have voting representation in Congress, and the residents of DC do not. The population difference is a red herring. CA and WY are each a single state, despite the population of CA being over 68 times the population of WY.

          The ‘no it isn’t’ is cute. Your handlers are intent on making you sound somewhere between pig ignorant and insane. You can have a look at the Census Bureau’s populatoin density maps. The actual urban settlement around Washington extends over two counties in Maryland, four counties in Virginia, and five stand-alone municipalities in Virginia. The share living in the District is about 15% of the whole.

          The District also has representation in Congress. It doesn’t have a floor vote, but it has something more important, and that’s a seat on committees. Eleanor Holmes Norton can solicit bribes from constituents with the best of ;em. One of her more egregious fundraising calls landed on Youtube.

          The import of the comparison with Manhattan is obvious. Manhattan’s the core of Greater New York, which runs over 19 counties in New York and New Jersey. It accounts for about 8% of the whole. If it had its own local government, it might function better than DC as well. It’s certainly more affluent and it’s boundaries are not just surveyor’s lines.

          Your complaint about the Senate is silly. The principle of representation was foundationally different from that of the House. Of course, it was never an issue during the years the Democrats controlled the Senate and the Republicans the House. The question at hand is whether we should admit DC as a state. The answer is obviously no. It’s not a discrete community except by convention. In every way but the legal formal, it’s a part of Maryland. Every state in the Union has surpassed DC in population bar two: Wyoming and Vermont. DC’s population was at it’s peak in 1950; while DC’s population was declining, Vermont’s increased by 65% and Wyoming’s by > 90%.

          The last two states admitted were geographically discrete communities with distinctive features. Hawaii’s population has doubled and Alaska’s population has more than trebled; the speculative feature of admissions to statehood has panned out well there. About 1/3 of the states are out west and were admitted after the Mexican war. All of them are assemblages of communities, not fragments of one community. Most of them have been comparatively dynamic demographically and none of them since the war have been as stagnant as DC. There still a lot of potential for settlement there which there isn’t in DC.

          If you’re actually concerned about representation of DC, retrocession would accomplish that nicely. It would require an act of Congress and an act of the Maryland legislature. Of course, that isn’t your concern.

          1. TIA, you sound “stupid” every time you pretend that I have “handlers at Correct-the-Record.”

            It’s a fact that PR isn’t a foreign country. It’s not a country, period.

            “you sound somewhere between pig ignorant and insane”

            You’re projecting.

            “You can have a look at the Census Bureau’s populatoin density maps.”

            I don’t need to. I know that the Census Bureau doesn’t talk about DC as a “settlement.” If you Google [“settlement” site:census.gov], you’ll learn how the Census Bureau actually uses the word “settlement.”

            “The actual urban settlement around Washington extends over two counties in Maryland, four counties in Virginia, and five stand-alone municipalities in Virginia. The share living in the District is about 15% of the whole.”

            I live in one of those counties, so I probably understand this better than you do.
            DC is part of a larger metropolitan area, duh.
            It doesn’t change the fact that DC isn’t part of either MD or VA, and DC could itself be a state. There are multiple metropolitan areas in the U.S. that cross state boundaries.

            “The import of the comparison with Manhattan is obvious.”

            No, it isn’t. Manhattan is part of a state and already has voting representation in Congress. DC is/has neither.

            “The question at hand is whether we should admit DC as a state. The answer is obviously no.”

            That answer is your opinion. People obvious have different opinions about it, and yours doesn’t count any more than anyone else’s.

            “It would require an act of Congress and an act of the Maryland legislature. Of course, that isn’t your concern.”

            Actually, as a resident of MD, it IS my concern, along with my neighbors’. If you think that the MD state legilature is going to approve retrocession, “you sound somewhere between pig ignorant and insane.”

          1. Art Deco — the all-knowing one — spends a lot of time here and is fond of insulting those with whom he (or she?) disagrees.

    3. certain strident Democratic voices claimed “everything is one the table”

      and that was on top of them promising more riots, and to “burn Congress down”

      terroristic intimidation is now openly a tool of the Democratic party at the highest level

      if Democratic voters want law and order, they must rebel against this insanity and vote Republican.
      this is no longer about “orange man bad” it is about who will support a system of free elections versus those who want to coerce voters into voting blue

      the choice of the future is up to us. terroristic intimidation in politics or a political contest which has rules.
      Democratic leadership and strident voices have promised they are throwing out all the rules. Well. How unfortunate.

  8. This process is very straightforward. If Trump can nominate someone acceptable to 50 GOP senators, it seems inevitable that the nomination will succeed before the election.

    I’m still unclear on how the voting works – can a senator choose not to vote? If that is the case, those 3 GOP senators could not vote and the total would then be 50-47, giving them even more room for error and don’t forget about Pence being the tiebreaker.

    As such, right now I’m sure McConnell is determining if he has the votes and that will determine if the nomination comes to a vote before or after the election.

    If I were a GOP operative, I would be launching all kinds of commercials quoting Obama and Ginsburg saying a nomination should proceed in an election year, and back that up with the historical facts showing this to be quite normal. But the GOP never wins the narrative game.

    1. Two of the usual RINO women senators (Murkowski and Collins) have, as predicted, already said they will not vote until after the election. Should Trump lose, neither of them would likely support his nominee.

    2. Loenzo, the narrative is that the Garland nomination was 6+ months prior to this one and there fore if comparable, in favor of Garland getting a hearing, not Trump’s choice. There are many more GOP senators offering the supposed high principle of giving voters the choice. That was revoiced by the always repulsive Lindsey Graham as recently as Oct 2018 and by Charles Grassly this July.

      1. PS Lorenzo, Don’t forget that another part of the narrative is this is not that normal and the almost universally admired Republican Abraham Lincoln passed on nominating a judge this close to an election.

        1. PS to the PS This current strategy underlines the fact that the GOP is no longer the Party of Lincoln but the Party of Roger Stone.

          1. Oh, I hope we still have some Abraham Lincolns out there. He did what it took to win. I think we probably do, but, we’re gonna find out

        2. Lincoln literally suspended habeas corpus and sent his lawmen out to smash certain seditionist printing presses with sledgehammers.

          We need Lincoln’s spirit today that’s for sure

  9. Biden gave the best explanation for why presidents should not resort to lists of judges, pointing out that this Trump gimmick is also an assault on our democratic norms. “First, putting a judge’s name on a list like that could influence that person’s decision-making as a judge — and that would be wrong.” In addition to setting the nominee up for “unrelenting political attacks” without the ability to respond, putting together a list unilaterally violates the fundamental process of advice and consent.

    Let’s talk about this stuff and give the left wing extreme idiots a rest. Instead of easy pickings, how about focusing on the weaknesses in the system, like the one that allowed a disgrace like Trump into the White House.

    1. Right, because if a judge isn’t on that list, they completely ignore the consequences to their own career when doing their job.

      What world are you living in???

      1. Lorenzo — backwards would, where Biden is a perfectly reasonable candidate.

        Why can’t they just let the man eat his Jello, watch Matlock reruns, and live out his days in peace and dignity? How much more must Mr. Biden endure before someone steps in and brings elder abuse charges against his campaign (and, presumably, his family)?

    2. The ONLY reason you think that the Electoral College is a weakness is because the psychopathic war criminal named Hillary lost the Electoral College to a real-estate developer.

      But thanks to all of those participation trophies you were given for doing nothing other than breathing air and taking up space, you just cannot get over the fact that you didn’t get your Hillary trophy.

      I bet you could throw one hell of a tantrum when you were a spoiled little tot.

  10. Chuck Todd. A few years ago he referred to the town of Ferguson as “a Ghetto”. The town is 70 percent african american. That does not make it a “Ghetto”.
    Chucky boy needs to be fired.

  11. Republicans were wrong with Garland and they are right now. Democrats were right then and wrong now. Trump, like Obama, had the right to make the appointment and it’s the Senate’s job to confirm or deny after that.

  12. Schumer and the democrats would do the same thing McConnel has done if they were in power in this instance and the 2016 instance. The Constitution state the President has the right to nominate someone for the Supreme Court and he is still President until he is reelected or someone else is elected and inaugurated in January. All the other comments past and present is just politics as usual. All that matters now is President Trump is still President and has the right to do his job.

    1. This is the topsy-turvy world of our poorly educated masses. A distinguished law professor who presents consistent opinions about important legal matters gets called a “sleazy hack” by a boorish, poorly educated person and to to “GFY” because he has the same considered opinion now as he did when Merrick Garland was nominated by President Obama: that there is no constitutional or other legal impediment to the Senate considering a Supreme Court nomination, holding hearings on a Supreme Court nomination, or voting on a Supreme Court nomination, but explaining that there are “good-faith reasons” not to do so.

      1. David, a “distinguished law professor” who is so lacking in moral bearings as to sum up the latest incident as showing hypocrisy on both sides can prattle on all he wants about the legal ramifications – less difficult than analyzing a malfunctioning carburetor on a ’57 Chevy – without therefore earning anyone’s respect, let alone attention. Throughout the last 4 years of course he has largely ignored the completely amoral – often immoral – acts of our compulsively lying President while pumping outrage about irrelevancies by people with much less power. Given his intelligence, he fits in the sleaze box, not the ignorant fool box though that;s a distinction at this point which is “moot”, as they say in legal circles.

    2. Bookie:

      “Dear JT, you sleazy hack, please GFY. Do it now and often.

      Thanks”
      ********************************
      Oh the wit and tender compassion of the commentary of the “past Christian atheist humanist” who has ” similar principles for life, which I consider practical and rational” as RBG. You reveal yourself with every comment. Such a decrepit and vile soul. Ingratitude isn’t the biggest sin, though, hypocrisy and its progeny, self-abasement, is.

      https://jonathanturley.org/2020/09/21/163100/#comments

      1. Mespo, I don’t think JT has earned “compassion” or “gratitude” though he has earned the scorn of anyone who values moral considerations in applications of the law. Sleazy hack is almost too generous a summation of his partisan pretense and posturing.

        1. ManofOneBook:

          “I don’t think JT has earned “compassion” or “gratitude” though he has earned the scorn of anyone who values moral considerations in applications of the law.”
          *************************
          Proof, if ever any more was needed, that you are neither Christian, post-Christian or a humanist but you’re probably an atheist. By the way, the law is only occasionally moral,as it isn’t supposed to be. That’s up to the churchs, synagogues and individual conscience. The law is about how we get along and is practical in the extreme. It’s ethics not morality and why poor widow’s get evicted, kids get separated from their criminal, jail-going parents and being a day late filing your lawsuit gets you kicked on the statute of limitations. It’s harsh but fair even though morality might dictate another and opposite result.

          1. Mespo, I am an ex-Christian since I no longer believe in spirits and also a humanist who identifies ethics as the application of moral values. The law is largely based on ethics and the current GOP position, which JT predictably ignores, does not. FH and the horse he rode in on.

        2. though he has earned the scorn of anyone who values moral considerations in applications of the law.

          Other than with environmental topics, JT will typically limit his opinion to the law and leave the debate to run its course. As I’m sure you’re aware, morality is a social construct and opinions vary. The law on the other hand is how order is maintained in civil society. The reason you consistently whine about not understanding why JT doesn’t take up your so called moral arguments is because he hosts a legal blog, not a morality blog. You’ve fumbled around for 4 years making what you consider moral arguments to justify any and all efforts to subvert the law and remove this president from office. The fact that path is blatantly immoral is lost on you.

          1. The law is a social construct which is changed over time to reflect changes in morality – see slavery and 3/5ths human for example. A discussion of law absent morality makes no sense while one that disguises morality make sense as despicable posturing and partisan BS. JT claimed equivalent hypocrisy on both sides of the nomination, a ludicrous, propagandistic, and immoral posture which lays bare the depths he’ll go to defend his team. The railing about the media without ever bringing up Fox is more than clue – it’s smoking gun proof – of what team he is actively on and this latest is a gag worthy abdication on his part of any moral pretense.

            1. The law is a social construct which is changed over time to reflect changes in morality

              And JT writes what the law currently is, correct? He doesn’t waste his time wishcasting what it isn’t. We’ve seen your so called morality in action as you’ve made it known you prioritize your moral and ethical worldview over the law. That idealism, absent a respect for the law, is a breeding ground for totalitarianism.

                  1. Olly, btb is merely revealing his true persona. If one looks at it carefully one sees that he bases his opinion on whether or not it agrees with his own. He doesn’t care about fact, consistency, existing law or anything else. He sounds amoral and his language demonstrates a boorishness that defines the lowest point of this blog. My ideology is far to the right of Turley’s but none the less I find his consistency dealing with the law refreshing though his understanding of the environment he lives in, academia, makes him sound quite naive to me on certain issues.

            2. Book is the sort of arrogant fellow who presumes that HIS MORALITY is the ONLY MORALITY

              Book, not everyone shares your particular values and viewpoints. This is the great DIVERSITY of American opinion; our greatest strength

              Get with the program, & learn to live well in a pluralistic society.

              PS Folks have you ever noticed that atheists are ever the most puritannical in their own petty moralizing?

              1. Book is the sort of arrogant fellow who presumes that HIS MORALITY is the ONLY MORALITY

                We all have a worldview of morality. And it’s likely we believe it’s the only morality. We can even be arrogant about it. The challenge is not permitting our nature to use the force of law to impose that morality on others. As Bastiat stated: If the law were confined to its proper functions, everyone’s interest in the law would be the same. We as a nation have lost that battle. He goes on to say: When justice is organized by law — that is, by force — this excludes the idea of using law (force) to organize any human activity whatever, whether it be labor, charity, agriculture, commerce, industry, education, art, or religion. The organizing by law of any one of these would inevitably destroy the essential organization — justice. For truly, how can we imagine force being used against the liberty of citizens without it also being used against justice, and thus acting against its proper purpose?

                So how do we return the law to its constitutional purpose?

          2. Both morality AND our legal system are social constructs. And they’re not disjoint sets; they have a non-empty intersection.

      2. Mark, you reveal yourself with every comment. Such a decrepit and vile soul. Ingratitude isn’t the biggest sin, though, hypocrisy and its progeny, self-abasement, is.

    3. Don’t know much about history
      Don’t know much biology
      Don’t know much about the civics I took
      But I call myself ByTheBook
      And the groujp knows that I’m a fool
      But I think that I’m so very cool
      It’s so wonderful to be me

    4. What a nasty remark for the forum host Professor Turley from book, one of his prolific commentators. Such ingratitude!

      Characteristic Democratic party cheerleader vitriol, unfortunately

  13. Democrats have attempted to make every year of Trump’s presidency his last year. Of course he should nominate and the Senate follow the process to confirm. That’s exactly what the Democrats would do if the roles were reversed. Once again, Reid was warned he would come to regret pushing the rule change.

  14. Yes, of course, the process is the process, irrespective of the hypocrisy. Two issues are surfaced with this situation. First, the court should have the maximum number of judges. Secondly, the system in all of its facets must be tuned from time to time and the Supreme Court being upgraded to 13 or 15 justices has been a valid objective for quite some time. If the exercising of power by the Republican Senators changes the court to a 6 to 3 representation of conservative to liberal opinions, in spite of the majority of Americans leaning to the liberal and if this change is only due to a condition that has nothing to do with democracy/the death of a justice; then if the Democrats, after Nov. 3 control the White House, Congress, and Senate, the people will have spoken and expanding the court in order to restore a more representative bench, will marry a long overdue restructuring of the Supreme Court and democracy. That Garland was not appointed had nothing to do with democracy or the people’s will but only represented power. Power is always there to be abused, regardless of the sort of leadership. Trump, himself, applauds Putin, Erdogan, and other dictators as they wield power. “I don’t care if it is good for the American people or bad for the American people, if it comes from the White House, we will block it.” M. McConnell. His quotes illustrate power for power’s sake in a frightening way. One wonder’s why Turley doesn’t ‘dwell’ on this treason?

    1. issac:

      “I don’t care if it is good for the American people or bad for the American people, if it comes from the White House, we will block it.” M. McConnell. His quotes illustrate power for power’s sake in a frightening way. One wonder’s why Turley doesn’t ‘dwell’ on this treason?
      ******************************
      Please cite the source of this canard. It’d sound dumb even if uttered from your mouth.

      1. This same individual (Issac) “If the exercising of power by the Republican Senators changes the court to a 6 to 3 representation of conservative to liberal opinions, in spite of the majority of Americans leaning to the liberal and if this change is only due to a condition that has nothing to do with democracy/the death of a justice;” illustrates perfectly the Democrats quest for power in the courts and the reason why we’re a representative republic, vs a pure democracy run by majority rules.

        This has nothing at all to do with “justice” or “rule of law” and everything to do with a tantrum because they see the impending loss of liberal influence on the court. If the count were 6/3 in the other direction I doubt we’d hear anything about it.

        If POTUS prevails and the Senate remains “red” on 3 Nov, would Issac also support the nomination if entered on 4 Nov? I’m guessing not.

        1. It always amazes me how the left cannot/will not distinguish between the constitution/rule of law and their utopian self-righteous wish lists. The left looks more and more like toddlers being told NO for the first time. Tantrums are what these riots are – spoiled brats angry because they may not get their way.

        2. If the count were 6 to 3 in favor of liberal judges it would more closely represent the will of the people. This is verified and has been for some decades in just about every poll. Regardless of whether Democrats or Republicans take advantage of loopholes or aberrations in the American system(s) of government, they are loopholes and aberrations and should be addressed. When Reagan won, he represented the majority of Americans. When Bush and Trump won they did not. If there was a more independent and responsible system of placing justices on the Supreme Court and one not subject to aberrations like McConnell’s hypocrisy, the Supreme Court would more democratically represent the people. The people make the law. The law does not make the people. Democracy makes the law, not a minority condition ushered in by the death of a justice. It is a fact that the US is an oligarchy where there are two choices when it comes to leadership, one more than a dictatorship. No other country spends anywhere near as much money to create this abomination of cheap television entertainment when presenting ‘champions’. It may be a flawed and oligarchical system but it’s our flawed and oligarchical system seems to be the only argument for this nonsense. The closer one examines the American system of government the more Byzantine and Mervyn Peake like it appears. We have a mad President, a diabolical Senate leader, and a system so devoid of democratic control that in the end, Americans get what they prize above all, entertainment. Is it any wonder that Reagan, an actor, became one of the most deceiving Presidents of all time. Brilliantly dyed hair and a soothing presentation while running roughshod over the very principles upon which America is supposed to be founded. And now, taking this circus to new extremes, we have the phony of all phonies, the consummate Thespian and fraud, Trump. Throughout every previous administration, Hollywood built upon the characters and parodied them. During this administration, nothing invented in the most perverse imagination could equal or surpass the characters we find today in our most sacred posts. Trump, McConnell, Graham, Inhofe, Scott, etc. You just can’t make this stuff up.

          1. Indeed Isaac and hear, hear!

            The winner take all EC accidents who gave us losers as presidents has also given us a court out of tune with the majority and the present. Stealing a seat was not an accident and not excused as such. The GOP knows it’s dying and has not tried to reset yet, so is storing nuts for their coming long winter. The court is presently illegitimate from this theft and due to be more so if McConnell gets away with it and should be called out as such until it is remedied.

              1. Rhodes, maybe you are unaware of the fact that Scalia died 11 months prior to Obama leaving office. The GOP argued that was too soon and now should have to live with that often repeated statement.

              2. Rhodes, tribalism is precisely what we need at this moment, to survive

                Republicans need coherence and phalanx-like cohesion. Together we will win!

          2. Polls do not decide things in our system Isaac. We have a system of elections and representative democracy and the form of a republic.

            We do not take orders from press men and “pollsters” who are even more corrupt than the average journalist.

        3. “If the count were 6/3 in the other direction I doubt we’d hear anything about it.”

          You’ve got to be kidding. McConnell blocked Garland’s nomination because it would shift the court to 5-4 in the other direction.

      2. McConnell stood in the doorway while being interviewed by the press after venting his spleen over Obama’s activities when he had the Senate. This was shortly after the Republicans took back control of the Senate. Power, vengeance, and treason made up McConnell and still do, today.

        1. Issac, I so happen not to like McConnell but I never could link him with treason. Can you provide us any evidence that he has done anything treasonous?

    2. “I don’t care if it is good for the American people or bad for the American people, if it comes from the White House, we will block it.” M. McConnell
      ——————————————————
      Any source? Thanks!

  15. THE DEM’s and their Radical Left Supporters are going crazy, they are insane. But, if the shoe was on the other foot they would go full speed ahead. Pres. Trump and Republicans should go full speed ahead an proceed with the nomination and confirmation, the DEM’s and MSM will go crazy and this is the issue that you will be a hearing about, everything else is falling off the radar. When the vote comes watch the insane go even more insane, sit back with the Popcorn and watch

  16. Once again I feel compelled to point out that no one threatened to ‘burn the country down’ when Ginsburg was put on the bench. Is it ignorance or obtuseness on the part of these ‘journalists’? Either way, it is painting an increasingly disturbing picture of one side of the aisle that would have no Ginsburg in the first place had their own misguided logic carried the day, a position she herself opposed. The projection of personal grievance and well, for lack of a better word, butt hurt, as universal truth on the part of an infantile populace will bring us to our knees if the rest of us don’t stand firm. Classical liberals, if they still exist, need to firm up the noodles that used to be their spines and the pudding that used to be their brains, and they need to do it *now*.

    1. But, don’t you understand that the hallmark compassion of the left only applies to those with whom they agree?

      To paraphrase: once we get our way the riots will cease and civility will return to public discourse (because we will dictate–under penalty of harassment, imprisonment, bodily harm, or death–what people can say, think, and do). We utterly reject and will not tolerate your intolerance! We are at war with Eurasia. We have always been at war the Eastasia.

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