Things Conservatives Believe That Liberals Don't...And Why That Is (Page 6): I see you are giving many examples of filling a Supreme Court vacancy in the last year of a term. I'm in...

3507

lindajoy wrote:

Do you believe had the parties control been differ... (show quote)

I see you are giving many examples of filling a Supreme Court vacancy in the last year of a term. I'm in favor of filling a Supreme Court vacancy "in the last year", or any year, of a term, although I have doubts about doing it in a rush during the very tail end of that year. My complaint was not specifically over the fact that a justice was put onto the Supreme Court during the last year of a presidential term. My complaint was & is that the Republican leadership of the Senate, mainly Mitch McConnell himself, made _such_ an extreme difference between how the Garland and the Coney-Barrett nominations were treated, refusing to hold a hearing (!) on _such_ an important matter (Garland nomination). I can see you are trying to address, or are contradicting, this point, when you say:

"Clinton’s opponents have said they won’t back down, setting up a battle that could help define the election and reshape the congressional calendar during President Obama’s final 11 months in office. They fought to do the very thing you chastise the republicans for and had they had the senate votes would have in fact put Garland in place."

Sorry I don't get what you are saying. Who are those "Clinton's opponents"? Are they some Democratic Senators? (Does this have something to do with Bernie Sanders? Please be more explicit about that part.) If "they" "would in fact put Garland in place", how could that be "the very thing" I "chastise the republicans for"? There were about 10 months when Garland _should_ have been either "put in place" or at least gotten a _hearing_ about it.
The main point of my gripe is the way Mitch McConnell refused to have that hearing for Garland. A _secondary_ part of my gripe is the way McConnell _reversed_ his stance on his stated _principle_ and _rushed_ the Coney Barrett nomination through; I wouldn't complain so much about Coney Barrett being installed if it weren't such a stark contrast, and such a baldly unprincipled thing, as seen alongside how McConnell treated the Garland nomination and the reasoning or excuse he gave for what he did.

Then finally, you seem to be saying (as McConnell essentially did) that Democrats would do the same thing if they had the chance. (You wrote: "it is politics as usual one party taking full advantage during their control that's all" and: "Fairness in politics??~~ Never, 3507… It isn't set up up that way both parties doing whatever necessary to be in control to" wreak "havoc on our country not for the betterment of it..As we witness every day!"). When Democrats have a majority in the Senate, I don't see _them_ delaying a nomination for 10 or 11 months until it expires. Also, I don't see Democrats being such sore losers that they would rather make up stuff ad nauseam, refuse to accept myriad court decisions, and incite a violent coup, rather than concede an election. I've never seen a Democrat presidential nominee act that way, though some have had plenty of reason to doubt an election (Gore in 2000, Kerry in 2004) (and, reference: the work of investigative reporter Greg Palast). Another thing I've never seen high Democrat officials do is insult so many people and so many nations the way Trump has done. Trump even suggested his supporters rough up people, and there's been more violence since then. I've never seen a Democrat president encourage violence and disrespect in such ways.

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The Ms. wrote:

Laws can be unfair!!!!As when women were denied access to jobs until 1972
when the law was changed! Just some history…..

Yes, laws can be unfair. More than that, we _can_ _improve_ the set of laws.

I say a similar thing about government. We _can_ _improve_ it.

3507

American Vet wrote:

And every Americans job is to insure that good laws are passed by electing the right people and certainly holding them accountable.

True, though I might sometimes emphasize "issues" more than "the right people".

kemmer

3507 wrote:

…Another thing I've never seen high Democrat officials do is insult so many people and so many nations the way Trump has done. Trump even suggested his supporters rough up people, and there's been more violence since then. I've never seen a Democrat president encourage violence and disrespect in such ways.

Trump was and is a boor and a thug, and has given the green light to the country’s boors and thugs to come out of hiding because now they have a kindred spirit leader.

3507

Cuda2020 wrote:

Yep, just like for many southerners, they never lost the war, people will have selective reasoning and stand their ground, no matter what. This is something Trump was clearly already aware of before he ever ran for the presidency, which is why he perpetuated..."The only way I will lose is if they rig the election," he's a regular Johnny Apple Seed.

I agree.

You say "selective reasoning". Another way to describe the situation is that people like to _belong_ (or "bond" in a group) and also enjoy feeling secure, superior, or stronger that some other people. If a politician or leader helps them to _feel_ good in such ways, they'll probably favor that politician or leader, regardless of how bad s/he is in all other ways. I picked up this idea from an essay "The Cruelty Is The Point" by Adam Serwer, Oct. 3, 2018, appearing in The Atlantic magazine, which I did not see, but I found the same essay in a book by the same title and author.

Fortunately that's not the only thing that motivates people; but it is one strong thing.

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Cuda2020 wrote:

Quote:"People, and the USA, are capable of be... (show quote)

In addition, I would amplify about lawyers. I've observed some lawyers in action. Some of them behave very cynically; they seem to be willing to do anything they can get away with, no matter how untrue or unfair or harmful it is. But I've encountered other lawyers who behave better than that.

At least a couple of lawyers have told me that regardless of what's good or who's right or whatever the evidence may prove, the judge may rule oppositely. It's one of the most depressing things I've ever been told. It's like saying: it doesn't matter what's right or good, nor does it matter whether you happen to have a really strong evidential case, nor whether all the many witnesses support your side of the case; you are just going in to see an autocratic judge who might do anything and there's nothing you can do about it.

I saw some lawyers playing the game, trying to anticipate a particular judge's bias and then pandering to it, rather than presenting a case on its own merits. (Actually, I think most lawyers do a mixture of good and bad behaviors.)

Some lawyers have an additional thing going on in their heads. They have a vision of what a truly good process would look like, and they do spend some effort trying to make that good vision come true. I saw one of them succeed pretty well at that. Honestly, even then I still wasn't satisfied, but I'm saying there really is a significant difference between the worse lawyers and the better lawyers, and it's not all just dog-eat-dog cynicism; and there really is a good process that can be obtained at least some of the time, and the whole system can be improved, and we should not just give up on the whole idea of justice, courts, law, nor government.

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Blade_Runner wrote:

Some progressive activists and commentators are understandably frustrated that the Senate refused to consider President Obama's nomination of Merrick Garland to the Supreme Court. Some sued (making borderline frivolous claims). Others argued that Obama could simply appoint Garland without Senate consent. The problem, in both cases, is that the Senate has no constitutional obligation to consider a president's nominees. While prior Senates largely used this power to withhold consent for lower court or executive branch nominees (leaving some judicial nominees in limbo even longer than Garland), there is no constitutional reason to treat a Supreme Court nomination differently.

Since the election, some are advancing a new strategy to place Garland on the high court: a recess appointment. This idea was floated by David Dayen in New Republic in November and endorsed this week in New York magazine by Ed Kilgore. The problem with this idea, however, is that it is clearly precluded by Supreme Court precedent and, even were this not the case, would be entirely fruitless.

Dayen and Kilgore suggest that Obama could recess-appoint Garland to the Supreme Court (and other nominees to lower courts) on Jan. 3 during the short recess between the 114th and 115th Congresses. This intersession recess may be infinitesimally short—perhaps no longer than the time between two swings of a gavel—but (the theory goes) must exist as there must be some amount of time between the end of one session and the start of the next.

The idea here is not new. President Theodore Roosevelt used this intersession recess to make numerous recess appointments in 1903. The practice was never repeated, however, and the theory upon which TR's actions were based were largely disavowed by subsequent administrations. But that's hardly the only problem with an intersession recess appointment.

The real problem with trying to make such an intersession recess appointment is that the Supreme Court has held that such an appointment would be unconstitutional in Noel Canning v. NLRB. Dayen and Kilgore purport to address Noel Canning – claiming it does not apply since the case concerned only intrasession recess appointments—but they ignore what Justice Breyer's opinion for the court actually says. As Seth Barrett Tillman points out, Noel Canning clearly precludes such an appointment. From Justice Breyer's opinion:

we conclude that the phrase "the recess" applies to both intra-session and inter-session recesses. If a Senate recess is so short [i.e., less than 3 days] that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause. See Art. I, § 5, cl. 4. And a recess lasting less than 10 days is presumptively too short as well.

If a three-day recess is too short, a three-second recess would certainly be as well and, contrary to Dayen's and Kilgore's suggestion, Justice Breyer's opinion makes no distinction between intrasession and intersession recesses. All told, every justice on the court embraced an opinion rejecting the idea that such an intersession recess appointment would be constitutional.

The problems with the Dayen and Kilgore gambit do not end there, however. Such an appointment, even if attempted, would be futile, but not for the reasons they suggest. Kilgore says a Garland recess appointment could be nixed only by a Senate vote to reject Garland's nomination—giving him the vote Democrats have called for—or through "extensive litigation." He's wrong on both counts. A vote against Garland's confirmation would not undo a recess appointment, and litigation, "extensive" or otherwise, would not be necessary to remove Garland from the bench.

Dayen rightly notes that it would be difficult to quickly arrange a lawsuit to challenge the constitutionality of Garland's appointment (though such suits have been brought before). Yet such a suit would not be required. All that the Senate would need to do is end its next session by adjourning sine die and Garland's term would end. This is because, under the Constitution's Recess Appointments Clause, such appointments terminate at the end of the next Senate session. Adjourning sine die would require the cooperation of the House and a president's signature, but that would be no obstacle come Jan. 20. In other words, Congress could terminate any recess appointment made by Obama in less than three weeks.

Kilgore concludes:

None of this is likely to happen, in part because Barack Obama isn't built that way, and in part because Democrats might fear the gesture would distract attention from the terrible things the new Trump administration and its congressional allies are trying to do to the country on many fronts.

No. The real reason this is unlikely to happen is that it would be unlawful and unavailing—and there is virtually no chance that someone of Garland's character would participate in such a gambit.

Update: I should have added that another reason this won't happen is that recess-appointing Garland to the Supreme Court would create a vacancy on the U.S. Court of Appeals for the D.C. Circuit that could then be filled by President Trump.

i Some progressive activists and commentators are... (show quote)

That's got some tricky gambits and legal technicalities. I'd much prefer a more straightforward process. I agree with these lines:

"Some progressive activists and commentators are understandably frustrated that the Senate refused to consider President Obama's nomination of Merrick Garland to the Supreme Court."

"... Barack Obama isn't built that way ...". One may hope so.

"... there is virtually no chance that someone of Garland's character would participate in such a gambit." I don't know all _that_ much about Obama and Garland, but I think they are the sort who favor straightforward, fair processes. Some other people are noticeably more devious and unfair.

American Vet

3507 wrote:

That's got some tricky gambits and legal technical... (show quote)

"I think" - but it is easy to prove you wrong.

Here are some of obama's "straightforward and fair" processes:

IRS Scandal

AP Phone Records Scandal

Illegal Immigrants and Obamacare

Sequestration and the Federal Budget

Fast and Furious

3507

Ricktloml wrote:

Ah those fair nominations like Clarence Thomas/Rob... (show quote)

All that, whether true or false, is beside the point for what I was talking about, which was mainly that the McConnell-led, Republican-led Senate refused to consider the Garland nomination, not even allowing a hearing on it, for a long time until it expired, obviously in an unprincipled way because they behaved oppositely later (Coney-Barrett confirmation).

As somebody else has said, this is about process. And so, I say: What should have had a hearing was denied a hearing.

Of course we care about outcomes too; but we should at least be able to agree on some fair process and uphold it. There was ample precedent, to illustrate that such things should get hearings in an even-handed process. McConnell did what he could to try to bludgeon that notion to death. But he didn't entirely succeed; because many of us _did_ notice, and do remember, and do still cherish the concept that there can be "hearings in an even-handed process". So , though we lost that round in 2016, we didn't totally give up on the idea of "fairness" in government, or that government can be better than just a cynical race to the bottom.

3507

The Ms. wrote:

Did anyone read Lois Lowery ,
“ The Giver”? It would clarify this thread!

I think I vaguely remember it, but don't see the connection.

3507

American Vet wrote:

We can never achieve what all persons would consider a 'satisfactory outcome'.

As you note, people are not the same. The boy talented in music is certainly free to try and play football - and the football player can try out for the orchestra.

If there is an orchestra. Or band. There wasn't either of them. The example was actually what happened in my school. There was a merger with another school a couple of years after I graduated. If I had been determined enough, or knowledgeable enough, I think I might have commuted to another school for instrumental music, possibly as Archie did for his agriculture course. At age 14 I wasn't much good at reaching out to such options. I suppose those of us who are a little different are better off in a larger environment where there are more options ready at hand.

American Vet wrote:

Let their ability/drive take them where they want.

As far as the 'budget' issue - that is ultimately decided by the voters. (Title IX is an example of this).

You make several good points: However, to me, equal remains supreme.