“Ruth Bader Ginsburg; Eight Is Not Enough”: An Equal Division Is Essentially The Same As A Denial Of Review
Last month, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), feeling pressure over his role in an unprecedented Supreme Court blockade, wrote an op-ed in which he insisted the whole mess is unimportant. The “sky won’t fall” if the Supreme Court remains deadlocked for a year and a half – eight justices is plenty – so the Republicans’ unprecedented scheme isn’t worth all the fuss.
Actual justices on the high court appear to feel differently. Justice Ruth Bader Ginsburg acknowledged publicly yesterday that the institution she serves is, in fact, being hurt by having eight justices instead of nine. The Washington Post reported:
The Supreme Court has deadlocked 4 to 4 in several cases since Justice Antonin Scalia’s death in February. Ginsburg told judges at a conference in New York that the situation is unfortunate because it essentially means important issues are being denied Supreme Court review, according to a copy of her prepared remarks.
“That means no opinions and no precedential value; an equal division is essentially the same as a denial of review,” Ginsburg said.
She added, “Eight, as you know, is not a good number for a multi-member court.”
Ginsburg is hardly the only one who’s noticed. Slate’s Dahlia Lithwick noted last week that the Supreme Court can pretend that “it can manage just fine with eight justices,” but the fact remains that the institution is struggling to do its job.
Nobody on the court can say: “Please give us a ninth justice so we can get back to work.” That sounds like a plea for a Justice Merrick Garland. That is why it’s left to former Justice John Paul Stevens to say it for them. Even if all eight justices were to agree that between being unable to take any cases for next term, and being unable to decide major cases this term, things are not getting done at the court.
The same week, the editorial board of the New York Times added, “Every day that passes without a ninth justice undermines the Supreme Court’s ability to function, and leaves millions of Americans waiting for justice or clarity as major legal questions are unresolved…. Despite what Senate Republicans may say about the lack of harm in the delay in filling the vacancy, the court cannot do its job without a full bench.”
By all appearances, the Senate’s Republican majority doesn’t care – according to Sen. Orrin Hatch (R-Utah), it’s somehow fair to treat Merrick Garland unfairly – but they should.
By: Steve Benen, The Maddow Blog, May 27, 2016
“Shredding Their Own Talking Points”: Senate Republicans Turn Their Principles Into A Punch Line
Before President Obama even introduced Merrick Garland as his Supreme Court nominee, Senate Republicans said they had little choice but to impose an impenetrable blockade. Their “principles,” GOP senators said, made any other course of action impossible.
First, for example, Republicans said their principles required them to honor the “tradition that both parties have lived by for over 80 years” about high-court vacancies that occur during a president’s eighth year. Soon after, Republicans sheepishly acknowledged that “tradition” doesn’t exist.
Republicans then said their principles about the Supreme Court have nothing do to with partisanship. Soon after, they quietly conceded that if a GOP president were in office, the blockade wouldn’t exist.
Republicans then said their opposition to Garland’s nomination has nothing to do with Garland specifically or his qualifications, but rather, the party’s principles about election-year confirmation votes. Soon after, the Republican National Committee released an oppo dump on Garland – a judge Republicans and conservatives have praised for years – which pointed in the opposite direction of their purported principles.
And finally, Republicans said their principles require them to keep this vacancy in place so that “the next president” can fill it, Garland’s merits notwithstanding. Except, many GOP senators have decided not to take this principle seriously, either.
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. The GOP game plan is as follows:
1.Impose an eight-month blockade on the Garland nomination, unlike anything ever seen in American history, including a prohibition on floor votes and confirmation hearings.
2.Wait for the election results in November.
3.If a Republican wins the presidency, do nothing.
4.If Hillary Clinton wins, revisit the blockade and consider confirming Garland during the lame-duck session between Election Day and the start of the new Congress in 2017.
The benefit to Republicans would be obvious: they’d confirm a 63-year-old moderate, rather than let Clinton nominate someone younger and more liberal. At that point, GOP senators appear craven and unprincipled, but by all appearances, Republicans just don’t care.
And while GOP senators may not be concerned about their reputations or their ability to take pride in their public service, they should be concerned with the details of the nominating process: if Clinton wins and Republicans decide to move forward on Garland, President Obama could always withdraw the nomination during the lame-duck session and empower his Democratic successor to start the process anew in the new year.
If Republicans aren’t prepared to take their own principles seriously, no one else will, either.
By: Steve Benen, The Maddow Blog, March 17, 2016
“Unlike Anything Ever Tried In American History”: The ‘GOP Gamble’: Voters Won’t Care About Court Blockade
As far as Senate Republicans are concerned, the fight over the Supreme Court vacancy is now officially over. They’ve declared themselves the winner.
Every Republican on the Senate Judiciary Committee, the panel responsible for evaluating judicial nominees in detail, met in private this morning with Senate Majority Leader Mitch McConnell (R-Ky.). Soon after, Sen. Lindsey Graham (R-S.C.), a longtime committee member, told the Associated Press the GOP group came to an agreement: there would be no hearing, no vote, and no confirmation of any nominee, regardless of merit or qualifications.
A partisan blockade, unlike anything ever tried in American history, is the only course the Republican majority is willing to consider. Period. Full stop.
Sen. Orrin Hatch (R-Utah), another member of the Judiciary Committee, said today he wouldn’t even speak to a Supreme Court nominee if he or she showed up at his office. Soon after, McConnell and Senate Majority Whip John Cornyn (R-Texas) said the same thing.
So, is the fight over an unchosen, unknown nominee finished before it begins? Well, maybe.
President Obama and his team are no doubt aware of the developments on Capitol Hill, though it’s unlikely West Wing officials are going to simply quit, telling each other, “Well, we tried.”
What’s probably going to happen is that the president will nominate a qualified official for the high court; he’ll encourage senators to do their job while honoring the constitutional process; and then Democrats hope for the pressure to change the politics.
The next question, of course, is whether such pressure is going to exist.
Last week, a Fox News poll found a clear majority of Americans agreeing that the Supreme Court’s vacancy should be filled this year, not next. This week, a Pew Research Center survey found similar results.
In the high-stakes battle over replacing Justice Antonin Scalia on the Supreme Court, a majority of Americans (56%) say the Senate should hold hearings and vote on President Obama’s choice to fill the vacancy. About four-in-ten (38%) say the Senate should not hold hearings until the next president selects a court nominee.
Of course, while independent and Democratic voters agree on senators doing their duty, the same poll found that 66% of GOP voters want the blockade to continue – and those are very likely the only voters Senate Republicans care about right now.
It sounds cynical and undemocratic, but by all appearances, GOP lawmakers on Capitol Hill just don’t buy into the notion that there will ever be a public backlash against them – on practically anything. Cycle after cycle, their antics are rewarded, even after a government shutdown, a debt-ceiling crisis, and a complete unwillingness to govern on practically any issue.
Periodically, someone will say, “The public won’t stand for this,” to which Republicans respond, “Of course they will. Voters don’t pay much attention anyway.”
By: Steve Benen, The Maddow Blog, February 23, 2016
“Not At All What Republicans Wanted To Hear”: O’Connor Undermines GOP Talking Points On Court Vacancy
In the fight over filling the Supreme Court vacancy, Republicans clearly have the more difficult task, at least when it comes to rhetoric and public relations. The Constitution has already made clear how the process is supposed to unfold, it’s now up to GOP senators to make the case that they should ignore – indeed, they have an obligation to ignore – the constitutional model.
Republicans can’t come right out and say the truth, since “we hate the president” isn’t a compelling talking point, so they tend to frame their concerns as high-minded. As Sen. Orrin Hatch (R-Utah) put it yesterday, the partisan blockade against any court nominee is intended to protect the institution from “politicization” and “denigration.”
It’s difficult to take such an argument seriously, and it certainly doesn’t help when an actual retired Supreme Court justice seems to have no use for the right’s talking points. The Huffington Post reported yesterday:
Sandra Day O’Connor, the retired Supreme Court justice appointed by a Republican president, said on Wednesday that President Barack Obama should get to name the replacement for the late Justice Antonin Scalia.
O’Connor, in an interview with a Fox affiliate in Phoenix, disagreed with Republican arguments that the next president, and not Obama, should get to fill the high court vacancy.
O’Connor specifically said during the interview, “I think we need somebody there to do the job now and let’s get on with it.” She added, in reference to President Obama, “It’s an important position and one that we care about as a nation and as a people. And I wish the president well as he makes choices and goes down that line. It’s hard.”
That’s not at all what Republicans wanted to hear.
On the contrary, O’Connor, a Reagan appointee who retired in 2006, effectively said the opposite of what GOP senators have argued since Saturday night.
Republicans have said the seat should remain vacant for 11 months; O’Connor wants the confirmation process to begin and for a new justice to take the seat “now.” Republicans have argued that the president shouldn’t nominate anyone; O’Connor made clear the nominating choice is up to the president.
Obviously, O’Connor is now a private citizen and her opinions are her own, but she’s also a respected figure, especially on matters related to the high court. If she’d said the opposite in the interview, encouraging Obama and sitting senators to leave the seat vacant until 2017 for the good of the institution, it’s a safe bet Republicans would be citing her judgment every day for the next several months.
But she didn’t. O’Connor seems to have no use for the GOP arguments whatsoever.
By: Steve Benen, The Maddow Blog, February 18, 2016
“Live By The Media’s Favor, Die By The Media’s Disfavor”: After Pumping Him Up For Months, The Press Turns On Marco Rubio
Marco Rubio is in serious trouble, so he’s now attacking Donald Trump, something he hasn’t been as eager to do before. While it may produce a return slap from the Republican front-runner, it probably won’t be enough to shift the discussion around Rubio, who is now learning a very hard lesson: Live by the media’s favor, die by the media’s disfavor.
Rubio’s rapidly shifting fortunes demonstrate how capricious those ups and downs in coverage can be. As much as we might like to believe that we’re nothing more than observers, chronicling the events that take place in as fair a way as we can, the media inevitably shape events too. As Walter Lippman wrote in 1922, news coverage “is like the beam of a searchlight that moves restlessly about, bringing one episode and then another out of darkness into vision.” For a long time, the light shining on Rubio illuminated the things that people thought made him a formidable general election candidate. But when the light’s focus shifted, things got very bad very fast.
A lot of Republicans fail to understand media dynamics because they’ve bought in so fully to their own propaganda about how the liberal media are biased against conservatives. Here’s how Sen. Orrin Hatch explains Rubio’s fall:
“Democrats can run a younger person like John F. Kennedy because the media is with them. Republicans will have a more difficult time because if somebody’s young, they’re going to get beaten up like never before by this biased media.”
Putting aside the utility of Kennedy’s experience running for president 56 years ago in explaining what’s going on today, the notion that the media were biased against Marco Rubio is ludicrous. In truth, no other Republican candidate got more glowing coverage for months than Rubio did; as I and others have pointed out, there have periodically been waves of stories about how Rubio was about to have his moment and rocket to the front of the race, since those in the know understood just what a formidable general election candidate he would make.
The trouble was that Republican voters never seemed to clue in to what the insiders were telling them. And even though after the Iowa caucuses media outlets everywhere declared Rubio the real winner despite his third-place finish, the Rubio explosion never happened. So when last Saturday’s debate came, the stage was set for a new story about Rubio. Chris Christie mercilessly attacked him for repeating a line about how “Barack Obama knows exactly what he’s doing” was the hook for the new narrative.
Why was Rubio’s performance in that debate such a big deal? It wasn’t because there’s something objectively horrifying about a candidate repeating a talking point a bunch of times, even after getting called out on it by an opponent. The real problem was the substance of what he was saying: that Barack Obama is intentionally trying to destroy America, a rancid idea that is no less vile for being common on the right. The repetition got so much attention in part because reporters approach debates by looking for some supposedly revealing moment or exchange that can be replayed over and over again. All the better if it involves confrontation (as this one did, between Rubio and Christie) and all the better if if makes somebody look foolish (as this one also did).
It also created a new story to write about — Is Rubio too robotic? — that reporters may have been primed for by watching Rubio’s message discipline on the campaign trail. That’s critical to understand, too: among the media’s most important biases is a bias toward the new. A new event, a new story, a new narrative will always be more interesting than another iteration of a story you’ve written ten times before. After writing “Rubio Poised to Break Out” for months, the media was ready for the dramatic shift to “Rubio Crashes and Burns.”
And then, just two days after the debate, Rubio had a brain fart during a town hall meeting, repeating twice the same line about pop culture getting rammed down our kids’ throats — saying it, then immediately saying it in almost exactly the same words again. That was too good for the press corps to pass up, since it reinforced the emerging storyline. (This narrative has also been pushed forward by his opponents.) Then when Rubio came in fifth in New Hampshire, the cascade of negative stories continued, leaving him where he is today.
Though he has taken responsibility for his own poor performance in the debate, if he’s like most candidates (both Democrat and Republican), Rubio probably thinks he’s not being treated fairly by the media. But nobody gets to have it both ways. You can’t say that it’s entirely appropriate to characterize a third-place finish in Iowa as a grand victory, then say it’s unfair to characterize a fifth-place finish in New Hampshire as a crushing defeat. You can’t say that everyone should pay attention to all the things that on paper make you a strong candidate, but object when too much attention is paid to your real-life flaws. And you can’t bask in your positive coverage, then object when you screw up and that winds up on the front page, too.
By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line Blog, February 11, 2016
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