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The Authority Behind McConnell’s “Hypocrisy”

Senate Majority Leader Mitch McConnell’s statement that a vote would be scheduled on a Trump nominee to fill the Ruth Bader Ginsburg vacancy has occasioned strong criticism from Democrats and some others as being inconsistent with his stance in 2016 that the new President should fill the Scalia vacancy. But this claim that McConnell’s actions cannot be reconciled is mistaken. A reasonable case can be made that McConnell’s actions are a legitimate exercise of the prerogatives normally accorded a Senate majority.

Debate over McConnell’s statements has turned to some extent on what exactly he said in 2016. Did he say that a vacancy that occurs in an election year should be filled by the next President? Or did he say that a vacancy, when the President and the Senate are controlled by opposite parties, should be filled by the next President? While a careful assessment of what McConnell said is important to determining whether his pronouncements are consistent, it is less relevant to my concern here: whether a reasonable case can be made for holding the seat open in 2016 and not doing so in 2020. 

The obvious objection to McConnell’s proposed action is that the justification for holding the seat open in 2016 was that democracy required the new President to fill the seat. And if democracy required that in 2016, it does so again in 2020. The possible McConnell response—that the Senate majority was from a different party than the President in 2016, but not in 2020—is irrelevant, because the argument from democracy applies irrespective of which party controls the Senate.

But this objection is mistaken. In the American system, the Senate majority has traditionally enjoyed various powers that it is entitled to exercise. It gains these powers by winning elections in which the voters place the responsibility to govern the legislative house in the majority party. 

One of these powers is the discretion to decide whether to hold a hearing and confirmation vote on a nominee. If the Senate were now controlled by the Democrats, it seems obvious that the Democrats would not be scheduling hearings or holding a vote on a nominee before the new President takes office. It is also obvious, I believe, that the Senate Democrats would not be taking these actions, even if McConnell had agreed to let the vacancy be filled in 2016. It is simply too close to the election.

The Senate majority’s power is not limited to hearings and confirmation votes on a nominee. The Senate majority also has the power to schedule hearings and votes on bills and legislative rules. This power is rarely questioned and seems to be understood as part of the prerogative of the majority party. One might argue that this power is needed to allow the majority party to govern in the legislative house and to be held responsible by the voters. But whether or not one embraces this power, it seems clear that it is part of the American system.

If McConnell’s decision was reasonable in 2016, then how can his 2020 decision to hold a vote before a new President takes office be justified? The answer is clear: it is one of the prerogatives of the Senate majority to do so.

The Senate majority’s power is accepted even when that majority takes highly partisan actions. Democratic Senate majority leader Harry Reid chose to eliminate the filibuster for circuit court judges in 2013 to allow President Obama to appoint three judges to the D.C. Circuit (often said to be the nation’s second most important court), thereby securing control of the court for the Democrats. Few argued that this action violated constitutional norms (as opposed to being imprudent), even though many Republican judges had previously been filibustered. This partisan act was deemed within the prerogatives of the Senate majority.

While the Senate majority’s power to schedule hearings and votes on nominees is largely accepted, that does not mean that this power is unlimited. It is easy to imagine exercises of this power that would violate accepted norms. For example, if an election resulted in a Democratic President and a Republican Senate majority, it is obvious that the Republicans would not be entitled as a matter of political norms to refuse to hold a hearing or a vote on the President’s Supreme Court nominee for the entire four years of the President’s term. Such an action would deprive the country of a nine-member court for an extended period. Thus, there are limits on the Senate’s power that are rooted in the overall functioning of the political system.

Precisely what this specific limit should be—what the appropriate trade-off between Senate discretion and Supreme Court functioning should be—is not obvious. The norms governing this situation are not clear at the margins. There are, however, some focal points that arise from history and other sources. One is a vacancy that arises at the end of the Supreme Court term in June during a presidential election year. Another is a vacancy that arises within the year that the presidential election will occur. I assume that virtually all observers would agree that a vacancy at the end of June is too late to require the Senate to act. Had Scalia died on June 30, 2016, the criticisms of McConnell would not have been very loud.

Obviously, there was disagreement about McConnell’s decision to keep the Scalia vacancy unfilled even though it arose during the election year (in February of 2016). While the Democrats believed the seat was left open too long, Republicans argued that a vacancy occurring during the election year arose close enough to the election to permit it to remain unfilled. In my view, McConnell’s position was a reasonable interpretation of the norm, albeit one that was contestable. By contrast, if one were to keep a vacancy open that occurred in the year prior to the presidential election, that would be a bridge too far. There would then be no obvious stopping point as to when the vacancy could arise and that would leave the Supreme Court vulnerable. Thus, McConnell’s decision keeping the Scalia seat open was reasonable, even though some might reasonably disagree with it.

If McConnell’s decision was reasonable in 2016, then how can his 2020 decision to hold a vote before a new President takes office be justified? The answer is clear: it is one of the prerogatives of the Senate majority to do so. While the Senate could hold the seat open in 2016, it was not required to do so. Similarly, the Senate majority can hold the seat open or allow it to be filled in 2020, as it deems the public interest to require.

One objection to my analysis is that it would lead to court packing by the Democrats. If the Democrats come to control the House, the Senate, and the presidency in 2021 (or in the future), then Trump’s filling of the Ginsburg seat may lead them to expand the size of the Supreme Court and fill it with Democratic appointees. While the Democrats might choose to court pack, it would not be justified under current norms. Court packing violates existing norms, having been rejected by all parties (until recently) from at least the New Deal. There are strong reasons for this rejection. Most importantly, there is no obvious focal or stopping point regarding court packing. If the Democrats choose to add three members to the Court in 2021, the Republicans could then, if they gained control of the House, Senate, and presidency, add three more members in 2025. This would soon undermine the Supreme Court’s role as a nonpolitical decisionmaker in our system—and would do so much more than having an eight-member court for four years.

In the end, one might criticize our system for allowing Senate majorities to exercise so much power. Of course, while there are disadvantages to significant majority party power, there are also advantages. One could have an interesting debate about such matters. But whether or not our existing system is optimal, Senate majorities do have such power and they often exercise it to benefit their party.

Reader Discussion

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on September 24, 2020 at 08:31:48 am

Respectfully, this is a weak and partisan rationalization, fatally wounded by your claim that McConnell's actions in 2016 and his plans to fill Ginsberg's seat are both acceptable yet rejecting potential court packing as it "violates existing norms". This is as rank and partisan hypocrisy as McConnell's. There are laws, but those laws are undergirded by unwritten rules and norms, and when one breaks those norms for self-serving ends, the result is a race to the bottom in destructive behavior, which you only criticize when potentially done in response. Any condemnation of potential court packing for norm violation without likewise condemning McConnell's clearly partisan actions in preventing Obama from getting judges confirmed at all levels for years, not just the Scalia seat on the Supreme Court in 2016, is utterly partisan and ridiculous. Disappointing analysis. I expected better.

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Lawrence David
on September 24, 2020 at 22:10:45 pm

You shouldn't expect better. McGinnis made pretty much the exact same argument years ago. I pointed out back then that if Republicans want to flout norms in order to politicize the court, they can't expect Democrats to respect norms against expanding the size of the court. He had no reply, just as Rappaport has none. They have no principles; they just have interests.

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nobody.really
on September 24, 2020 at 08:44:55 am

Wouldn't it feel better to take a deep breath and just say it is gross hypocrisy? It was gross at the time and it is grosser now. The Constitution did not specify the timing because it's authors never thought our legislature would be so crass and feverishly defensive of party. No wonder congressional approval ratings are so abysmal, and college professors shamelessly shoveling for the right are just as off-putting as college professors shamelessly shoveling for the left. Speak the truth: a seventh month delay of an essential Constitutional process to get a preferred nominee on the court is disgusting, childish and beneath our dignity as a nation. A five week rush to get another one speaks volumes about the frantic grasping for legitimacy of our current "Conservative" movement.

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Michael J Grey
on September 24, 2020 at 11:51:29 am

Most likely The Constitution did not specify the timing because Our Founding Fathers did not envision a Time in our Salvational History when our Nation, which first and foremost, recognizes that God Endows us with our inherent, unalienable Right to Life, to Liberty, and to The Pursuit of Happiness, would evolve to the point that this self-evident Truth would be denied by a party that, in denying The Author Of Love, Of Life, And Of Marriage, evidently desires to render onto Caesar or themselves, that which belongs to God, in order to justify their denial of both The Spirit Of Divine Law, and the spirit of The Constitution.

The hypocrisy is claiming that our inherent unalienable Right to Life, to Liberty, and to The Pursuit of Happiness comes from God, while ruling against God in The Supreme Court.

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Nancy
on September 24, 2020 at 12:40:03 pm

Nancy, they will not grasp the theological significance of what you said. That is the willing hypocrisy at the heart of darkness.

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paladin
on September 25, 2020 at 18:19:23 pm

Uh ... does anybody NOT understand what Nancy is saying? I mean, she's been saying it for a long time now.

As far as I can tell, Nancy is saying that SCOTUS has sometimes ruled in ways that deviate from her beliefs, and because she holds those beliefs so strongly, she supports using the means of raw political force to achieve her ends. To her, the ends justify the means.

And that's fine--but she can't be surprised when people who hold different beliefs ALSO support wielding raw political force to achieve their ends.

You reap what you sow--and she who lives by raw political force dies by raw political force. You can't abandon all sense of principle and then expect others to be constrained by principle.

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nobody.really
on September 26, 2020 at 11:03:32 am

I simply affirm the self-evident truth that God Is The Author Of Our Inherent, Unalienable Right to Life, to Liberty, and to The Pursuit of Happiness, the purpose of which can only be, what God intended. What sense of principle are you claiming that God, Who Endowed us with our unalienable Rights Has abandoned, or are you suggesting that by affirming our inherent unalienable Rights our Government is creating a raw political force that will serve to undermine the very principles our Government was created to secure and protect?

It is important to note:

“When the freedom to be creative becomes the freedom to create oneself, then necessarily the Maker himself is denied and ultimately man too is stripped of his dignity as a creature of God, as the image of God at the core of his being. The defence of the family is about man himself. And it becomes clear that when God is denied, human dignity also disappears. Whoever defends God is defending man.”

Pope Benedict’s Christmas Address 2012 before the atheist materialist over population alarmists globalist, through some fissure, were welcomed at The Vatican, and then, The Veil Was Lifted.

What will, we, The People, become if we no longer affirm God Is The Author Of our inherent unalienable Rights, and our inherent unalienable Rights are no longer unalienable?

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Nancy
on September 26, 2020 at 15:18:37 pm

That should read, after the atheist materialist over population alarmists globalist, through some fissure, were welcomed at The Vatican in the spirit of ecumenism, but before the atheist materialist over population alarmist globalists, who condone abortion and euthanasia, and thus view certain vulnerable beloved sons and daughters as a burden and not a Blessing, were actually embraced in The Vatican as Our Blessed Mother, Mary, The Handmaid Of Our Lord, Who, Through Her Fiat, Affirmed The Unity Of The Holy Ghost, was replaced with pacha mama, and “mother earth” was worshipped in The Holy Place, and thus The Veil Was Lifted, separating the counterfeit schismatic church, from Christ’s One, Holy, Catholic, And Apostolic Church, outside of which, there is no Salvation, due to The Unity Of The Holy Ghost.

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Nancy
on September 24, 2020 at 12:30:54 pm

Silly comments! Embarrassing, really.
Political naivete and moral self-righteousness on stilts.
Ignorant, too, of the necessity to defend civilization and of the necessary and proper political means of doing so.

Just the kind of stuff that one would expect from those enemies of civilization, the Washington Post, the New York Times, NBC, CNN et cetera, and from civilization's weak-kneed, spineless, feckless friends, the Bushes, McCain and Romney. Oh, and Jeff the Flake, too.
Marquis of Queensbury rules for us; lies, deceit and treachery for the enemy. Yeah, that'll work!
Chuck U Schumer and Pelosi love Republicans of that ilk, and that is usually all they have to contend with, which is why the Democrats hate Trump. He's different. He fights.

What's missing in this commentary from the usual obtuse commentary of the ubiquitous fools who form the Republican Party's perennial circular firing squads is a few good words about fund-raising for BLM and the need for a national conversation on systemic racism.

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paladin
on September 24, 2020 at 14:02:41 pm

“Law and Liberty,” always the place to go for intellectual acrobatics by otherwise intelligent and learned men (more often than not) in defense of their petrified loyalties. The Republican-Trump cult has wholly abandoned the true aims and values of American conservatism, and we would all do well to admit it. Caesar is on his way.

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Greg
on September 25, 2020 at 11:06:10 am

"Caesar is on his way."

And Brutus, in the guise of Never Trumpers anxiously await the Ides of March

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Guttenburgs Press and Brewery
on September 24, 2020 at 15:38:58 pm

My esteemed Paladin,

I suppose it is inevitable that in our discussions on this forum, we will occasionally encounter good faith and good natured disagreement. I believe I understand the gist of your position, and would offer the following:

There is an argument, likely true in the present circumstances, that our republic is confronted with an existential threat; that there is too little distinction to made between "transforming" and "destroying." I agree that there are malign motives and ideologies that animate progressive thought, and these should not be cavalierly accorded the assumption of good-faith political disagreement. I further agree that "politics ain't bean-bag" and that we should not wager the blessings of liberty on the good faith, wisdom, or interests of the partisan left. I concede that in a fight for survival "there is no such thing as a fair fight unless I win it." I do not dispute any of these, yet I believe that some effort must be made at establishing the legitimacy of political efforts to defend the American republic, its freedoms and its culture. I think that Professor Rappaport makes at least a halting attempt to legitimize the conduct of Senator McConnell, but also think that Messrs. David and Grey are justified in pointing out the fragility of this attempt.

I thought that Merrick Garland should have received a vote, and that he should have been rejected. I think President Trump made a mistake in committing himself to nominate a female. I think the source of the mischief is confusing partisanship with special interests. I would submit that it is entirely possible for the over-riding consideration to be what is in the best interest of the United States. I do not doubt that you and I are agreement as to what those interests are, but I submit that this should be the only rationale used to defend either the decisions of Senator McConnell or the actions of President Trump. I believe that the legal parsing, the discussion of "normative" this and precedential that are downstream of this initial consideration. The issue should not be framed as one of whether Barack Obama was "entitled" to his pick, but whether confirming Merrick Garland was in the best interest of our country. THe consideration should not be who is the most qualifed female or person of color, or "empathetic," but who is the best jurist when viewed from the perspective of what is in the best interest of United States, human dignity and individual liberty. This should be the starting point, advocated unashamedly and forcefully.

An interesting phenomenon in history is certain people determining outcomes, not because they are great people, but conversely because they are mediocre. Their significance descended from their mediocrity. Neville Chamberlain is probably the best example, but we might also include Louis XVI, and King John. More on point, Anthony Kennedy was one such person, whose significance arose from his being a mediocre jurist in a position ill-suited to mediocrity. It is arguable that Sonia Sotomayor is the most mediocre mind to serve on the Supreme Court, at least in the past hundred years. David Souter is probably runner-up. Neither Antonin Scalia nor Ruth Bader Ginsburg were mediocre. It is not in the best interest of the country to replace a non-mediocre Supreme Court Justice with a mediocre one. The cold, uncomfortable fact, shorn of all sentimentality or "We the People" platitudes is that Joe Biden, another mediocrity, should not be given the opportunity to replace Justice Ginsburg. If there is a Constitutional way to avoid this hazard, then that is justification enough.

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z9z99
on September 24, 2020 at 15:57:40 pm

Agreed - abso-bleeping-tively!
All that ought to be considered is:
a) whether the nominated jurist will perform their judicial *duty*
and
b) whether the nominated jurist has the intellectual AND moral wherewithal to recognize that *duty.*

If such a jurist is available, then he or she ought to be nominated, considered and confirmed with all due haste.

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gabe
on September 24, 2020 at 17:58:12 pm

Garland would have been confirmed. "(T)hat is all ye know on earth, and all ye need to know" about that.

Ginsburg was smarter than Sotomayor, Stevens was smarter than Souter, and Douglas much smarter than Brennan and Warren together, but none was less ideological than the other. Indeed, the smarter the ideologue all the better to disguise his public malevolence. Lenin was so much smarter than Stalin that to this day there is a public misperception that Lenin was the Machiavellian statesman, unlike Stalin the tyrant.

Garland did not warrant a vote if he could be denied a vote until a much better nominee for the country and the constitution was in position. That was the case, and the country and the constitution are certainly the better off for it. Now we face the same choice, and not even an Establishment Republican would fail to make it.

Same reply to Gabe, except to add the thought that one man's duty is another man's mission. Garland would have been a Stevens, a Souter, a Breyer or a Ginsburg, each with the requisite "intellectual and moral wherewithal to recognize (and) perform their judicial duty," which each saw as a mission, that of shoveling more earth on top of the buried constitution.
To quote Z, Senator McConnell took the "Constitutional way to avoid (that) hazard, (and) that is justification enough."

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paladin
on September 24, 2020 at 18:56:26 pm

Of course, if Senator Schumer wishes to talk “fairness” and “precedent,” perhaps we should start with Miguel Estrada.

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Z9z99
on September 24, 2020 at 18:57:15 pm

Paladin:

Perhaps it was my phrasing - BUT - I did not intend to suggest that Garland should have been considered and certaintly NOT confirmed as his record, just like Sotomayor, Ginsburg, and others fail to meet the moral, and with Sotomayor, the intellectual standard I suggest.
The moral standard in question is fidelity to the Constitution as written and as publicly understood at the time of ratification.
Then again, we, in the age of "Gorsuchization, now understand that even those with the intellectual wherewithal may still be prone to certain moral failures as the desire to rewrite custom, tradition and simply and willfully ignore the most powerful and overriding"reliance interest", i.e., that COTUS BOTH EXPRESSES AND MANDATES (oops on the caps) that it is the Legislative Branch that is empowered to legislate NOT the judiciary. Apparently, even the "brightest" and seemingly "original" minds are prone to overreach.
Are the citizenry not entitled to that presumption, are they not entitled to a 'reliance" upon the actual words of COTUS?
So yes, one man's duty may be another man's mission if one does not define duty as fidelity to the COTUS, All the more important to know and screen for possible "mission creep" amongst any and all candidates. Gorsuch was an apparent failure. Thomas was NOT.
So yes, let Cocaine Mitch use the power of the Senate to push through the expected nominee. Let us hope that he or she does not have a romanticized understanding of the role of a Justice.
That to me is more important than the timing of a confirmation.
Get the damn thing right!
Ask about the nominee's views on abortion, LGBT, admin state, etc etc. Don;t play the Democrat game whereby they make damn certain their nominees will vote in accordance with Leftist preferences BUT deny they ask (and assure) that their nominees are on board.
The Trumpster should ask and insist that they do their proper judicial duty; that they do not see penumbras and emanations; that they do not observe the meaning of legal text changing with the times; that they expect that the Legislative will enact any changes that it deems proper; and that the Judicial will not encroach upon the power of the other branches.
That is enough for me. KNOW what you are buying!

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gabe
on September 24, 2020 at 19:51:18 pm

You have both offered Alka Seltzer for my heartburn. "Oh what a relief it is!"

BTW RBG is now my favorite ex-Justice, as nothing became her on the Supreme Court like the leaving of it. Other than Hillary, RBG may have been the most shocked and depressed person in America on the morning of November 9, 2016. RBG bet the house against red and lost. So much for radical feminists as gamblers! RBG rejected Obama's request that she step down. The smug certainty of RBG's refusal to retire then can be seen today both as history's sweet irony and its bitter lesson, depending on one's hopes for the Court's future.

Finally, Gabe's notion that the president should "kick the tires before buying the car" is good advice. It's easy to ask all the right questions the right way while leaving the necessary room for deniability and evasion during confirmation. The Dem's have done it since FDR, and RBG herself perfected his playbook.

The Republicans since Eisenhower, on the other hand, for want of prenuptial interrogation have had more bridal disappointment than Henry VIII.

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paladin
on September 24, 2020 at 17:20:48 pm

So essentially the argument is that the actions of Senate Republicans in 2016 and 2020 are consistent because the Senate majority had the discretion and power to take the action they chose each time. This seems like a roundabout way of saying simply that there is no reason other than the obvious: Senate Republicans confirm Republican nominees and block Democratic ones purely out of partisan considerations, and will follow that principle regardless of whether it conforms to historical norms. They certainly can do it, but this argument doesn't really answer the question that appears more pressing: should they do it and are their reasons good enough? And it is important to note that Justice Kennedy, a Reagan appointee, was confirmed in February 1988, an election year, by a Democratic Senate.

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John DeJulius
on September 25, 2020 at 14:48:28 pm

You make a valid observation, which is of course a necessary step in remedying extant hazards. Of course, it is not generally sufficient to merely note that the house is on fire, further interventions are needed to abate the crisis, and these should generally receive priority over the emotionally satisfying effort to assign blame for the conflagration. Further, the spectacle of a house aflame may not, by itself, adequately answer important and related questions: Is an arsonist loose? Was it wise to build houses out of straw and kindling? Are open flames a reasonable means of illumination?

We observe an analogous phenomenon with regard to our social and political norms. It is quite easy, trivial in fact, to identify transgression of norms, and to proffer theories explaining such events. But the substantive inquiries are harder, and more important. The first of these is arguably "what is the value of norms, and what defends them from abuse?"

There used to be norms discouraging protesting at the homes of government officials. There were unwritten strictures against attacking the children of politicians, or of openly wishing for their assassination. There were commonsense, social restraints on not blocking ambulances on emergency runs, or disrupting traffic. There were evolved notions of fairness that discouraged demands of "justice" wholly independent of due process and consideration of facts and circumstances. Norms militated against un-personing college professors for expressing conventional opinions. In short, we have permitted attacks on a developed and civil array of norms, and have thus far been content to observe the spectacle, rather than engage in the more crucial efforts to mitigate the resulting damage.

The present assaults on norms seem to derive from two basic sources: undisciplined emotion and political advantage. Outrage is very caustic to norms, and the pusilanimous tendency to accommodate trashing of norms because someone is mad is a pathology of its own. Civilization requires a degree of discipline over popular emotions.

Questioning and even repudiating norms is not new; it is a feature of social interaction, and is an inescapable consequence of having norms in the first place. Norms are not genetic. But there is a long and helpful tradition, a history pointing to how the evolution of norms should occur. This is largely the theme of Burke's Reflections on the Revolution in France.

With regard to the present conversation, we may note that there have been various political machinations regarding our Constitutional procedures for selecting federal jurists that predate Senator McConnell's leadership. Abe Fortas was prevented from becoming Chief Justice via filibuster, but this was at least arguably how the system should have worked. Objections to his elevation arose from serious questions regarding corruption and the appearance of impropriety. More recently, Democrats used the filibuster to derail the nomination of Miguel Estrada to the D.C circuit court, at least arguably on grounds that Chuck Schumer did not want the first Hispanic Supreme Court Justice (for which Estrada was being positioned) to be a conservative. In the process, norms were transgressed, with the predictable consequence that Republicans would retaliate, further degrading those norms, and Harry Reid would foolishly dismantle one of the structures that provided some shelter for norms: the filibuster for certain judicial appointments. We also had the spectacle of confirmation hearings being hijacked by unsubstantiated allegations of misconduct, solicited and stewarded by partisan interests. This was another normative violation, for which its advocates did not bother to consider the benefit of the norms that they molested.

It is much better for our republic to pay more attention to the usefulness of norms (Chesterton's fence provides needed guidance here) and to defend those in need of defending, than it is to treat violation of norms as simply another campaign talking point. The degradation of norms is not ameliorated by who does the degrading, nor by who obtains a transient benefit thereby. If we are serious about our country and our civilization, we need to nurture and defend the essential elements, the first principles, and not be content with vilifying political opponents. If you think that Senator McConnell violated a norm (and he probably did) then make the case for why that norm is important, and why everyone, regardless of political orientation should think it so.

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z9z99
on September 25, 2020 at 16:43:40 pm

The question is raised by commenters: is there a defensible norm pursuant to which Trump's nominee should be voted on during the remaining months of Trump's first term? I submit three norms are operative: 1) The constitution provides the essential norm. It empowers the president to appoint and the Senate to confirm Supreme Court nominees, while making no mention of delaying the appointment or the confirmation vote until after the next election should the necessity of a nomination arise prior to a federal election. Indeed, every nomination to the Supreme Court can be said to occur before a presidential or a Senatorial election, so that delaying the nomination and vote until after the next election inevitably presents the party out of power with the chance of having its way through delay. That is what happened to Judge Garland, and it is simply a function of who controls a majority of the Senate, which, again per the constitutional norm, is empowered to vote whenever it wishes to confirm or deny confirmation to whomever the president nominates. It's all very constitutional. 2) The 2d normative standard is moral, is holding or delaying the vote the right thing to do for the country and constitutional governance? Here, political opinions may differ, although not legitimately so, since one party, the Democrats, have wrought 80 years of Supreme Court arrogation unto itself of state, Executive and Congressional powers which the constitution denies the Supreme Court. For the Senate to attempt to put a stop to such judicial usurpation by exercising its constitutional power to delay and withhold its confirmation vote is, it would seem, an exercise of morally-grounded, constitutionally-founded normative behavior. Such delay can best be viewed as a prudential exercise by the Senate of its Article II, Section 2 checks and balances obligation to advise and consent on presidential nominations to the federal judiciary. 3) The 3rd normative standard is precedent, which in Senatorial politics can be viewed as doing things the way they were last done, always done, or tit for tat. With the current nominee contretemps we have all three. The way they have always been done, with few exceptions, is for the president to nominate and the Senate to vote before the next election. Indeed, John Adams nominated and the Senate confirmed John Marshall after the election of 1800 had destroyed Adam's Federalist Party. That is the normative standard that Trump and McConnell will follow here. The way it was done the last time was for the Democrat president to nominate before the election and the Republican Senate to decline consideration of a Supreme Court nominee until after the election. Insofar as that was not a one-off but a precedent, it is a rarity in politics, a one-time precedent, and on its facts not the situation we face today and, thus, not a precedent for the situation we now face. Thus, the norm of the way it was done the last time is not transgressed.

The "tit for tat" as precedent it the most apposite today. The Democrats embarked on the strategic path of politicizing everything in 1980, with the election of Reagan. The Democrats' "take no prisoners" politicization-of-everything strategy was elevated to all-out political warfare with the Bork confirmation hearings. Then it became a scorched earth strategy against Republican nominees with the nominations of Judges Bork and Ginsburg's in 1987, Clarence Thomas' in 1991 and Kavanaugh in 2018, all three of which produced significant political victories for the Democrat Party, Bork's trashing leading to Justice Kennedy, Ginsburg's to Justice O'Connor, and Thomas's and Kavanaugh's trashing at the hands of Democrat thuggery to the eternal besmirching of their judicial reputations, casting forever in doubt the integrity of their work on the Supreme Court. And with each Democrat confirmation victory the constitution and the country also lost bigly. Hence, the "tit for tat" normative standard which, arguably, has been deployed today can best be viewed as prudential politics, undertaken not to get even, but rather, to deny constitutional arsonists access to more napalm.

BTW: Critics of the Republicans today for deviating from normative standards should check and compare the Party votes on Breyer, Ginsburg, Sotomayor and Kagan with those on Roberts, Alito, Gorsuch and Kavanaugh. Also, they should consider that the strong Democrat vote for Kennedy was because the Democrats knew the Republicans had run up the white flag with Kennedy. The Democrats got their man, and they knew it.

If the smart politics now played by the Republicans is to be thought devoid of normative standards (which is not the case,) then from 1953-2017 the Republicans have largely failed to apply normative standards to Article III nominations and confirmations, and, as a result, the Democrats gained Warren, Brennan, Blackmun, Powell, Stevens, Kennedy, O'Connor, and, yes, Roberts.

Rather than bemoaning the lack of normative standards by Republicans on judicial confirmations, the Democrats should be urging the Republican Party to stick with its mindless, standard-less practices of 7 decades. That the Republicans in 2017 abandoned their old ways and adopted vigorous, new, vital norms for its judicial nomination and confirmation practices is what scares the Hell out of the Democrats and their Leftist major media co-conspirators.

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paladin
on September 25, 2020 at 18:03:11 pm

I think that the 2nd normative standard (the moral one) that you reference in your first paragraph is worthy of more discussion.

A question immediately arises as to whether norms are ends in themselves, or tools for achieving higher ends. If the latter is the case, we must consider the possibility that observing a norm (or custom, or tradition) in a particular case is detrimental to those higher ends. Is observance of norms sometimes a matter of form over substance?

I think that this is in some degree the basis of the Never-Trump position. There are norms of behavior, manners if you will, that are thought beneficial to the governance of a free republic, and there is little doubt that President Trump is often lacking in the decorum associated with these manners. The president transgresses certain identifiable norms, and this is interpreted as a repudiation of norms that impair the ambitions of tyranny. The syllogism inherent in such a view is, however, flawed. Civilization is not defended by the rote observance of norms, but by understanding and defending the principles on which those norms evolved. There is a reason why Saul Alinsky advised making one's opponent live up to his own rules, rather than making him live up to his own principles.

It should be obvious that norms are significant. Because of this there are consequences to both observing them and transgressing them. These consequences are quite often unintended and occasionally catastrophic, so reason and good conscience requires contemplation of the consequences of either course of action, and accepting responsibility in either case.

We are presently confronted with any number of challenges to established norms, e.g.

1. Refusal of losing candidates to concede elections;
2. Politicizing the I.R.S., FBI, CIA, and arranging surveillance of an incoming administration;
3. Attempting to elevate the dying wish of a Supreme Court justice to a Constitutional consideration;
4. Encouraging confrontations of government officials in their private lives;
5. Accommodating criminal behavior that has a political motivation, etc.

In these circumstances, there is a moral question that confronts members of a free society: Is it reasonable to accommodate the corruption of political institutions if such corruption is facilitated by one-sided observance of established norms? Should norms be observed when the consequence is the destruction of those principles and values that provide the rationale for observing norms in the first place?

One anticipates an objection that such questions lead to "the ends justify the means" rationalization. But this brings us back to original issue: are norms means to ends or ends in themselves? Is observing them the right thing to do regardless of the consequences, or is the propriety of such observance dependent on the benefits and mischief that results?

I suspect that these considerations are best addressed by contemplating the consequences of both observing and transgressing norms. I can easily foresee the detriment of court-packing on the legitimacy of the Court and on its perception as a neutral arbiter of Constitutional questions. The derivative consequences of these outcomes is speculative, but might easily be presumed to be detrimental for all concerned. Similarly, the consequences of politicizing agencies of the Federal government might seem like a reasonable short-term expedient, no worse than a complex fraternity prank to an ideology-blinkered and immature mind, but the ramifying consequences of which will persist to the sorrow of nearly everyone for decades. Undermining confidence in elections might seem like a principled act of resistance, but is likely to have the same consequences of morbid nihilism that brought grief to revolutions throughout history.

In short, norms do not exist for their own sake. Objections to bad manners or transgression of norms may be justified, but only upon serious and dispassionate consideration of the alternatives.

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z9z99
on September 25, 2020 at 17:03:15 pm

Uh oh!
The election cycle is heating up and nobody really has returned to the arena tyo dispense the latest Democrat party talking points.
My Dear nobody, this is unnecessary as we may hear those very same points on any network or read them in any newspaper.

Of course, I will admit to a certain sense of pride in the realization that the Democrat party thinks highly enough of Law & Liberty to authorize one of it's factotems to propagate those views directly and immediately on this site.

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gabe
on September 25, 2020 at 20:44:56 pm

Quiet! Maybe he'll go back to sleep.
Do you suppose he's an anchor on CNN?

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paladin
on September 25, 2020 at 21:02:00 pm

I think he's firing up his religious animus in preparation for the Barrett confirmation hearing. Anti-Catholic bigotry has a pedigree in this country every bit as long as that of racism, and it's of the same ilk.

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paladin
on September 26, 2020 at 10:23:53 am

Anti-Catholic bigotry....

Ah, yes, that famous anti-Catholic bigotry against 22% of the US population, that has managed to ensure that Catholics DOMINATE the Supreme Court--and, with Amy, would become 67% of the Court.

Look, I get it: Democrats represent a broad range of people, and thus can nominate intellectuals from a broad range of backgrounds--including Catholics. But Democrats haven't had that many opportunities. Republicans represent a narrow range of interests--and almost none of the intellectual ones. But thanks to the abortion issue, doctrinaire Catholics remain in their camp, and that has become virtually the sole pool from which the GOP can draw. When was the last time a Republican president nominated someone for SCOTUS who was NOT Catholic?

(I say doctrinaire Catholics, because most Catholics remain Democrats. https://www.americamagazine.org/politics-society/2017/04/06/new-data-suggest-clinton-not-trump-won-catholic-vote And as the Church in the US becomes ever more Hispanic, and the GOP becomes ever more white-nationalist, I expect that correlation will only grow stronger.)

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on September 26, 2020 at 11:15:12 am

You have a short memory, Biden-like: Neal Gorsuch and Elena Kagan.

And may God save us from those abhorrent "doctrinaire Catholics." After all, they might well relaunch the Crusades and start another Holy War! Or they might succeed in rescuing from death-by-Democrat the next 50 million prenatal infants bound for human sacrifice.
Thus, by all means, give us even greater multitudes of calm, rational Catholics who don't take seriously all that superstitious hocus pocus of their faith and, instead of voting their God-given obligations, vote according to their politically-expedient consciences. And since even more illegal immigration means, as you say, that that "correlation will only grow stronger," then rather than "lock her up" let us chant (in ironic memory of Reagan) "Tear down that wall!" Let us then move the Statue of Liberty to the Mexican border, open wide that border and welcome the hordes of correct Catholics with, “Give me your tired, your poor, your huddled masses yearning to breathe free.”

I can see that you are a person who takes religion seriously, as a serious enemy of and obstacle to what you stand for. And it is, so you you should.

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paladin
on September 26, 2020 at 20:02:53 pm

When was the last time a Republican president nominated someone for SCOTUS who was NOT Catholic?

You have a short memory, Biden-like: Neal Gorsuch and Elena Kagan.

Ah, you're memory is better than mine. I now see that Gorsuch was merely raised Catholic, but now belongs to a Protestant church.

And I still can't recall when a Republican president nominated Elena Kagan for SCOTUS. Yet you say you can. How very Trump-like.

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nobody.really
on September 26, 2020 at 21:43:21 pm

Yeah, I see my error. Sorry.
I had quickly read your statement, and when I replied to you I misremembered (Biden-like) your assertion as "When was the last time a non-Catholic was nominated to the Court?" I was focused on the extraordinary recent history of Catholic Court nominees. Starting with Reagan through Trump's 1st term, of 15 nominees 8 were Catholic (Scalia, Kennedy, Thomas, Roberts, Alito, Sotomayor, Kavanaugh and Barrett,) 3 were Episcopalian (O'Connor, Souter and Gorsuch,) 3 were Jewish (Breyer, Ginsberg and Kagan) and 1 Evangelical (Harriet Meirs.) (Breyer often attends the Red Mass.)

Catholics will soon have a majority of the Court. I just wish a better Pope was giving orders.

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paladin
on September 27, 2020 at 01:16:04 am

Catholics will soon have a majority of the Court.

Soon? Is this one more Trump-like pronouncement, in the vein of "Frederick Douglass is an example of somebody who's done an amazing job and is being recognized more and more"?

Last I checked, Catholics have held a majority of the seats on the Supreme Court since 2006.

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nobody.really
on September 25, 2020 at 21:45:31 pm

Good hearing from you, too. Hope you're keeping the fires at bay--and away from the vineyards. I'm still planning to cash in on some wine when I get there.

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nobody.really
on September 26, 2020 at 11:24:32 am

I'll give you some recommendations - but only RED (as in Red State -Ha) Wines.

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gabe
on September 26, 2020 at 22:42:14 pm

This year's Oregon wines will have a distinctly smoky overtone. Can't wait to try some. Should go good with barbeque.

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Scott Amorian
on September 27, 2020 at 15:30:36 pm

Oops! My last reply was intended for the troll called "Nobody."

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paladin
on September 27, 2020 at 15:11:00 pm

Voting majority. Sotomayor, while nominally Catholic, is constitutionally the opposite of her 4 Catholic colleagues.

Quare: Are you emotionally incapable of conversing without insulting? I suggest you drop the Don Rickles act; you're not funny and struggling to be what you're not is unbecoming.

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paladin
on September 27, 2020 at 16:04:04 pm

Are you emotionally incapable of conversing without insulting?

The topic of this post is the Senate's behavior in stacking the judiciary on a partisan basis. I sincerely regard the behavior--and the behavior their apologists--as driven by political expedience at the expense of principle. This is hardly an original observation on my part. And if people find this observation insulting, I'm glad; it suggests they at least acknowledge that they SHOULD have principles.

In other respects, I'm perfectly capable of returning insult for insult. If you would like to use your "Biden-like" skills to find where I have offered insults that were not prompted by someone else's insult, I'll be more than happy to apologize.

Otherwise, spare us your Trump-like whimpering.

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nobody.really
on September 27, 2020 at 17:47:40 pm

Well, I can't say you didn't answer my question.
Sorry to see you back. I suspect that nobody missed you. Trolls contribute nothing.

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paladin
on September 28, 2020 at 11:52:27 am

...nobody missed you.

Indeed, nobody had. But now that I'm back, nobody is beside herself with joy.

(Admittedly, the comedy part needs work....)

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nobody.really
on September 25, 2020 at 18:41:46 pm

This debate about the legality of filling the vacancy created by Ginsburg misses the central point about democracy: that which is legal may not carry democratic legitimacy. By focussing on McConnel's stand on filling court vacancies within the election period, we miss the point about how the court is viewed. More and more, judges are being viewed as partisan. Then a court is not needed. Simply by noting the party affiliation of a judge, an algorithm could decide how (s)he might tilt on a case. A Republican court would decide in favour of Republican presidents and a Democratic court would decide in favour of a Democratic president. Even if the law allowed the practice to be formalised, dispensing with expensive lawyers in court cases, the court would not carry legitimacy for its judgements. That is why judges must not only be independent of politicians, they must be seen to be sufficiently independent minded and legally competent to listen to arguments. They must be unpredictable by those that appoint them. Whether McConnel should hold a vote before January is not the point. The point is that no judge having much self-respect should agree to sit on the court if confirmed purely on partisan lines. Appearance of independence is important, as independence from politicians itself is independent. In the Pinochet case in England, he was detained on a warrant issued by a Spanish judge, for crimes committed by the government in Chile during his term as head of state, Lord Steyn recused himself because his wife had been a member of Amnesty International, an organisation which campaigned to bring to notice allegations of torture and killing of dissidents during the Pinochet era. His recusal was important to signal the importance of the court being prepared to listen to Pinochet's defence. It is true that this degree of sensitivity is not expected in the United States. Justice Scalia went hunting with the Republican Vice Presidential candidate only a few days before proclaiming the controversial election counts in Florida in favour of his friend. However, there are limits before the court loses its legitimacy in the eyes of the public. The current debate about the control of the judiciary to expand party political agenda is close to that limit.

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Curious
on September 25, 2020 at 20:42:48 pm

A thought about your thought that "... no judge having much self-respect should agree to sit on the court if confirmed purely on partisan lines." is that it would preclude the appointment of Supreme Court Justices from this day forward until such time as the Revolutionary Democrat Party is destroyed at the polls and forced to reject and rebuild its principles and constituency.

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paladin
on September 26, 2020 at 05:20:21 am

That is an assertion without evidence on which no self respecting judge can act now.

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Curious
on September 26, 2020 at 10:32:01 am

Oh well, have it your way.
But can you name 20 Democrats who would vote for a Trump nominee? I can name only one who MIGHT, Joe Manchin of West Virginia. If a few Democrat votes is your definition of bipartisan, then I withdraw my comment.

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paladin
on September 26, 2020 at 18:55:54 pm

Perhaps you have put your finger on the button, that dogma and not pragmatism have come to dominate politics and institutions in the US. That is unfortunate. Countries need to free themselves of dogma -- if two doctrines collide, no compromise is possible -- before democracy is possible. Countries, for example in the Middle East, where there is greater respect for doctrine than it is in the West, are not democratic.

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Curious
on September 26, 2020 at 18:49:59 pm

Sorry, an error in the above post. It was Lord Hoffman and not Steyn. Lady Hoffman had done some admin work for Amnesty.

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Curious
on September 27, 2020 at 21:01:13 pm

Those herein whimpering and moralizing, sniffing and sneering and the like from some imagined moral/ethical height, and moaning about some imaginatively perceived lack of principled behavior by McConnell cannot be taken seriously by anyone who is not a simpleton or a gullible dupe, a useful fool and tool. Obama's January 5, 2017 meeting, apparently the point where the wholesale plot to undermine Trump's presidency - and if possible overthrow it entirely via a "soft" coup - was set in motion, together with what has followed, could readily be viewed (certainly so in terms of principle and a lack thereof) as the apotheosis of what began with the nomination of Robert Bork in mid-1987. The apotheosis of vile and in a sense debauched cynicism and brutality, the apotheosis of utterly vicious and venomous forms of contumely, libel and slander, the apotheosis of insidious and pernicious modes of manipulating masses via disinformation and in general via a wholesale abandonment of any principled behavior whatsoever. The debauched aspect can be viewed in the visceral hate and bloodlust of sorts so obviously enjoyed by the practitioners, the malfactors in question, it very much has a sensual quality to it. Hence, for one, the manic and dissolute tribalism and still more palpable bloodlust we see in the streets.

Or, more simply, compare the nomination and Senate hearing processes of Bork, Thomas and Kavanaugh with those of Ginsburg, Breyer and Sotomayor. Excepting for the self-blinkered and self-blinded, the willfully blind, the differences in applied principles are stark. But the willfully blind, and thus the stupid will seemingly always be with us. (The stupid in question are not in general stupid, they are selectively or categorically stupid. Stupidity can be defined as the inability to learn; the persons in question obtain this inability precisely because they are and are content to be selectively and willfully blind.)

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Michael Bond
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