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democracy in crisis
The Senate Detonates
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  • ——————————

    “The ideal of the nonpartisan judge exists to protect the rule of law.”

    The ideal of the nonpartisan judge exists only in our dreams….

    • Fred

      I think once again, your facile cynicism has you a bit blinkered. Certainly no judge has ever been completely objective and non-partisan nor could any be given human nature. That said, at one time the idea of an objective non-partisan judge who applies the law rather than making it was a regulating ideal. Even if very few judges ever entirely lived up to that ideal, they were expected to and probably more often than not attempted to, however much they may have failed at times. When such a regulating ideal exists, more people will live up to it more of the time than when the “ideal” is do whatever the hell you want. That too is human nature.

      • ——————————

        “Certainly no judge has ever been completely objective and non-partisan nor could any be given human nature.”

        You could have just said that…which is simply another way to say what I did. The rest is just filler….

  • Beauceron

    This will, of course, blowback on the Republicans at some point.

    But I suppose, considering that Reid already went nuclear, we know the Dems would have done the exact same thing anyway.

    • Isaiah601

      I mean, we know that because they explicitly told us they would do it. They bragged about it.

  • QET

    In my lifetime, the Court has moved steadily to the left. Not at a continuous velocity; sometimes the conservative judges will manage to delay the leftward movement for a while. In my lifetime, it is the liberal bloc on the Court who has overruled precedent after precedent, all the while taunting conservative justices that their hands are tied per Chesterton’s famous axiom. The trade winds emanating from the nation’s law reviews over that time–the winds that fill the sails of the justices’ opinions–have been vastly in favor of what I would term a leftward movement in all fields: criminal law, tort law, constitutional law, and all the rest: constant, if not uninterrupted, expansion of personal liability and constitutional rights.

    It was the Democrats who brought the verb “bork” into the OED. It was the Democrats who dredged up Anita Hill in a ploy to prevent Clarence Thomas’ confirmation under the novel ad hoc legal theory “I Believe Anita.” I was there for all of this. I witnessed it. Not to mention FDR’s Court-packing threat, which I did not personally witness.

    And so now the Democrats have decided to innovate once more. Tradition meaning nothing to them, they have filibustered a nominee whom even many liberals endorse. They have done this solely for the cameras, solely for the epic prose they know will be gushed in the pages of the nation’s once-leading political news organs: NYT, WaPo; and on the web pages of all of the new propaganda mills. The Democrats cannot lose. If anyone thinks a Democratic Senator up for reelection next year is going to lose his or her seat over this is dreaming.

    And yet sober, serious publications like TAI still feel they must frame this issue solely in terms of the possible adverse consequences that might result from the GOP merely defending itself and actually using the majority power it won in the recent elections. The Democrats killed the non-partisan character of the Court in 1987, then, like the English following the Restoration, dug up its corpse in 1990 and killed it all over again. Now they have smashed the sarcophagus holding the bleached bones of that non-partisan character and they are going to grind them into dust. But TAI soberly cautions against the Republicans disabling the filibuster. And this, after the “reconciliation” abomination perpetrated by the Democrats in 2009 re Obamacare.

    TAI, you have gone a tsk tsk too far this time.

    • Gary Hemminger

      But you are forgetting one thing. Democrats are good, just, decent, sustainable people. Republicans are all evil, vile, bigots, racists, xenophobes, and child killers. Because this is true and everyone knows it, it is okay for Democrats to do whatever they want, because what they want is good, and what Republicans want is evil. Because good must overcome evil, laws only apply to Republicans, so that they can be controlled. Laws don’t apply to Democrats because anything they do must be good, just, fair, and sustainable. It is about time that people started to really understand this.

      As an example, Sanctuary cities are all good. Because Democrats are good, it is okay for them to not follow the law. But if Republican cities decided to break the law and not enforce environmental laws, well then that is bad because Republicans are bad and all laws still apply to them. Remember Animal Farm? All Animals are equal, but some Animals are more equal than others. Same thing applies here.

      • f1b0nacc1

        And that childish notion (I am not attributing it to you, just for clarity) will continue exactly as long as Republicans do not choose to fight back and exact a price for it. What happened today was a good beginning, a lesson (which will likely be ignored, as most early lessons are) that there are limits to one-sided aggression. The GOP has ALREADY paid a price for their spineless acquiescence to the march of the Left, TAI’s cherished ‘norms’ have existed only in the minds of pearl-clutchers like WRM for quite some time now.

        If the Left wishes to embrace the doctrine of “by any means necessary”, then they must be made to pay a price.

    • RedWell

      This is the mirror image of a bunch of liberals patting themselves on the back.

      I tip my hat to TAI in this post for hewing to traditional conservative political values. “The ideal of a nonpartisan Court exists to protect the rule of law. That ideal might seem superficial and phony. But we undermine it at our peril.”

      By contrast, casting the other side as ne’er do wells and fools — as if they don’t exist on both sides, as if people of good will and good ideas don’t exist on both sides — what I see here is a kind of radicalism. A willingness to drive into the abyss rather than do the thing that is a part of any healthy politics: compromise.

      That isn’t conservative. It is the raw psychology of cognitive consistency and smug certainty. Exactly like liberals.

  • Angel Martin

    It would have happened anyway with the next Democrat President. If Democrats think this is such bad idea they should repeal it when they are next in power.

    • Gary Hemminger

      Great point. They aren’t going to do that.

    • f1b0nacc1

      Keep in mind that the Dems made it clear that ANY nominee who didn’t embrace their own talking points on various issues was ‘unacceptable’ to them, i.e. that only a Lefty would pass muster. Contrast this with the behavior of the GOP, which passed with little objection two of Obama’s quite ideological nominees. Only with an election in sight, the balance of the court at risk, and the clear intention openly expressed (gloated over really) by the Left regarding their plans for an HRC-shaped court, did the GOP discover a spine.

  • Pete

    “some of the norms and niceties that once characterized the Supreme Court nomination process might now be swept away entirely.

    The ‘niceties’ are observed only for democrat nominees, not conservative Republican ones.

    • M Snow

      There are no niceties for either side anymore.

  • Suzy Dixon

    It’s already politicized! SCJs should be elected, even if it’s once every ten years.

    • FriendlyGoat

      Dandy idea, but you didn’t exactly say “national popular vote”, did you?

      • Suzy Dixon

        Well I don’t know why it would be. National popular votes/referendums aren’t used in the US due to its vastness and subcultures and unique regional economies and disproportional population distribution. At this point, however, I really wouldn’t care. Either a popular vote, or just let the winner of the presidency choose without this garbage in the legislature.

        • FriendlyGoat

          Sooo—–Suzy calls for an “election” which she “wouldn’t really care” if was REALLY just the president replacing Supreme Court Justices at his/her discretion at the 10-year mark.
          Trust us, honey, the rest of us do care.

          • Suzy Dixon

            Either the president should be able to appoint them, or not. The way it is today could certainly be classified as a fault in the governments’ architecture.

          • FriendlyGoat

            The way it was—– before today—– was supposed to produce centrists acceptable to at least some Senators in both parties.

          • Suzy Dixon

            Yeah that’s just a dog show. It should just be tied in to the general elections, perhaps every other election so I guess eight years

          • FriendlyGoat

            Well, if you wish to amend the constitution, go for it. When we talk about THE national court which issues rulings which affect every American, then we would have a reasonable right to assume any such election of judges would involve an equal-weighted vote from every American.

          • Unelected Leader

            Good news. You’ve already got that. A state has as much say in electing a president as it does in writing laws for that president to sign (or veto). It’s called the electoral college. The SC should probably tied into that concept as well.

          • FriendlyGoat

            Well, you can go amend the constitution to that effect. Everyone LOVES the electoral college, after all. It does a dandy job of making about half of citizen votes for the presidency utterly meaningless and citizens will appreciate you trying to pull that wool over their eyes for the high court too, no doubt.

          • Unelected Leader

            Read this carefully: A state has as much say in electing a president as it does in writing laws for that president to sign or veto. It’s very simple. Two senators + reps based on population. This isn’t hard.

          • FriendlyGoat

            Suzy suggested we have SCOTUS elections. You’re suggesting we do nothing. Maybe you should talk with her instead of me.

          • Unelected Leader

            I’m talking to you because you did not appear to understand how the electoral college works.

          • FriendlyGoat

            I’m completely aware of how the electoral college works. It selects the president. It has nothing to do with SCOTUS except selecting the president.

          • Unelected Leader

            And you implied that it is somehow unfair without justification. The EC operates by population. If you have a problem with the EC then you have a problem with federal representation (Article I) more broadly.

          • FriendlyGoat

            I have a problem with the idea of electing Supreme Court judges at eight or ten year intervals as Suzy suggested without drilling down to details on what kind of elections we would be talking about—–popular vote or something else.

  • FriendlyGoat

    McConnell did not invoke the “nuclear option”. Fifty-two Republican Senators invoked the “nuclear option”. Nuking the less-wealthy half of the population from the bench for decades to come is a demonstration of their “principles”. When you can’t find three out of fifty-two who are not thoroughly despicable——well, at least you know what you’ve got.

    • Tom

      It’s long past time that you realized that the rule of law does more to protect the less wealthy than the more wealthy.

      • FriendlyGoat

        Not when those laws and their interpretations are made by the upper crust, Tom. You’ve read some history, after all.

        • Tom

          I have. And I know that the upper crust ALWAYS manipulates things to their advantage–and when the law does not rule, it’s far worse than when the law does.
          You might consider reading Violence and Social Orders by Douglas North.

  • D4x

    “…No Supreme Court nominee has ever failed because of a partisan filibuster. Never, not once, ever in the 228 years of our venerable
    Constitution. One nominee-Justice Abe Fortas, to be elevated to Chief Justice-lost one cloture vote in 1968 on a bipartisan basis and then withdrew under an ethical cloud. But no Supreme Court nominee has ever been defeated by a partisan filibuster.

    And this historical standard has nothing to do with changes in the Senate rules. The filibuster has been permitted under Senate rules since early in the nineteenth century. It’s not a recent or novel power. The cloture rule was adopted 100 years ago. In other words, at any point in our history, a Senate minority could’ve attempted to filibuster a Supreme Court nominee. They had the tools. The rules permitted it. It would’ve only taken one senator.

    Yet it never happened for a simple reason: self-restraint. While written rules are important, sometimes the unwritten rules are even more
    so. Habits, customs, mores, standards, traditions, practices-these are the things that make the world go round, in the United States Senate no less than in the game of life. Our form of self-government depends critically on this form of self-government. …”

    https://www.cotton.senate.gov/?p=blog&id=652

    • ——————————

      ““…No Supreme Court nominee has ever failed because of a partisan filibuster.”

      Given the situation in this country, we shouldn’t be surprised. There is an extreme war of ideas breaking loose…and we are just in the beginning stages of it….

      • D4x

        Preference for it being the end of the beginning, or, better, it be the beginning of the end, in this war of ideas. However, you are more realistic.

        I still can not really understand how the NYC City Council got the idea, and turned it into law, to redefine pronouns, with a $250,000 penalty. I can understand regulating dangling participles, but, pronouns is a leap too extreme.

        • ——————————

          I’m glad it’s not that complicated here in Texas. Our government is just trying to keep the illegals out….

          • D4x

            I moved – still feel like a refugee – to NC, just in time for HB1, but, at least my vote finally counted. It has only been noticeably, intimidatingly, Extreme Ideas since 2013.

  • PierrePendre

    Why do Americans pretend they have an independent judiciary that is not politicised, aka corrupted, from top to bottom. District court judges Robart and Watson took it upon themselves to interdict the US government’s constitutional right to regulate immigration on grounds which were overtly politically. Watson, evidently a liberal, decreed that Trump’s executive order was grounded not in the constitutional prerogatives of his office but on remarks he had made as a candidate. He didn’t need to rule from the bench. He could just as well have phoned in his decision after reading the newspapers over breakfast. For this we need lawyers? Anyone with a prejudice could do the job just as well.

    The appeals circuits issue their opinions depending on whether their majority is liberal or conservative so Watson was in no danger of rebuke from the 9th circuit.The supreme court itself was a political forum long before Kennedy Borked Bork. Robert Woodward wrote a book about the constant tensions between the court’s liberals and conservatives and how the former held the latter in contempt because, well, everyone knows Republicans aren’t smart so Republican judges can’t be smart either.

    A politicised judiciary is not an independent judiciary. It means that the United States has no institution to which Americans may look as an impartial and disinterested arbiter above the lies and machinations of every day politics and the operatives who work in the party apparats.

    There’s a reason why the judiciary should be independent and why originalists like Scalia adhere more closely to the ideals of democracy than those who see the constitution as a living document to be interpreted in conjunction with fashion or lots of shouting. A constitution is document that guarantees every citizens his rights. Activism, including constitutional activism, is the province of politics. When judges set themselves up as activists, they become politicians who arrogate to themselves the right to deprive rather than guarantee the citizen of the constitution’s protection.

    The United States set out to be the land of laws. It’s failed pretty badly and it gets worse.

    • Gary Hemminger

      Hey Pierre,

      The answer to your question Why do Americans pretend… is pretty simple. We don’t. No one with a brain does anyway. I can tell you the outcome of a judicial decision based on who the judges are doing the judging. the fact that you think that somehow we don’t get this tells me that you are reading and watching way too much junk out there. Why TAI insists on writing these kinds of “we wish the world was a wonderful place” is beyond me. No one with an ounce of brain in their head thinks that our judges are fair. They are not. Their decisions are all based on their politics. that is why the Democrats and Republicans are so worried about Supreme Court picks.

  • Gary Hemminger

    The ideal of the nonpartisan judge exists to protect the rule of law.
    That ideal might seem superficial and phony. But we eliminate it at our
    peril.

    It was already eliminated years ago. Just admit it to ourselves and move on. Every dinner party ends in a brawl for our politicians because this is the way a majority of people want it to end. Our politicians are representing us exactly. They want a brawl everytime and they want to obstruct every time, because this is what a majority of their constituents want. It is really time to stop blaming our leaders for the problem with our electorate.

    Ask 10 people on the street what are the 3 branches of government. Ask 10 people any basic question that anyone should be able to answer, and you will get about 2 in 10 that can answer it. Unfortunately I must admit that this country is a country of fools. Not bigots, just fools who believe what and who they want to believe.

  • Jacksonian_Libertarian

    The Supreme Court isn’t a coequal Branch of the Government, because all the Justices are hired by the Power Hungry Politicians of the Executive and Legislative Branches. The Politicians don’t pick Judges that will protect the Authorities and Rights of the States and the People, but rather Judges that will support their usurping of those Authorities and Rights!

  • Kneave Riggall

    Repeal the 17th Amendment! (H/T Mark Levin)

  • f1b0nacc1

    The stakes here are simply too high. The Left, being unable to establish themselves with any of the elected branches on a consistent basis, have turned to the courts to impose by force what they could not gain by persuasion. As a result, they have backed the rise of the courts (and the SCOTUS in particular) as an all-powerful super-legislature. Now they stand within a single elderly life of losing control of the monster that they have built, and even the dimmer ones among them understand this. Thus they are willing to say or do anything at all to retain that control, for they know the danger that they face in its loss.

    I am a believer in limited government because it lessens the appeal of its control to people, thus establishing a virtuous cycle of increased liberty and less control. What we are seeing unfold is an object example of the evils of ignoring this principle

    • D4x

      Here is another reason why Wilson definitely was the worst POTUS ever, from City-Journal 04 10 2017, an important read: “…the working of the administrative state, constructed by progressive Democrat Woodrow Wilson explicitly as a replacement for the Constitution of 1787, which he considered an obsolete relic, its system of separated powers and checks and balances much too slow to deal with fast-changing modern reality; its elected representatives mere amateurs in a complex world needing constant management by experts with specialized knowledge. Instead, administrative agencies, such as the Federal Trade Commission, would make rules to carry out Congress’s enunciation of basic principles. They would administer those rules and adjudicate infractions of them by “administrative judges,” who are merely the simulacrum of judges, since they possess no independence and are employees of the agencies on whose disputes with citizens they are to rule. And in place of the Constitution, we’d have the Supreme Court sitting as a permanent constitutional convention, continually reshaping the basic law of the land in a Darwinian adaptation to ever-changing circumstances, “with boldness and a touch of audacity,” said Wilson, so as to shed a dead Constitution for what he called a “living” one.” …”

      Did a Revolution Just Occur? Thoughts on the Gorsuch confirmation” Myron Magnet April 10, 2017

      https://www.city-journal.org/html/did-revolution-just-occur-15110.html

      • f1b0nacc1

        Bravo! As always, a comment that is a delight to read…

        • D4x

          Always good to share –

  • Arkeygeezer

    The rule change in the Senate only got rid of the ‘artificial filibuster” instituted some years ago to relieve Senators from having to really talk a bill to death. It does nothing to limit debate in the Senate. If the Democrats want to engage in extended debate, refusing to yield the floor, they can still do it. The rule that one senator can file a piece of paper filibustering a nomination without actually engaging in extended debate, has been changed.

    • texasjimbo

      What I’ve read of the rule change explicitly contradicts what you’re saying. Furthermore, they actually changed the rule to limit the length of the debate even further. But I’m fine with that. The senate “debate” is nothing but posing and was never going to change a single vote on this nomination.

  • ljgude

    I think there was a case for letting the Democrats filibuster – say for a week. And then another week. I think it would have been possible to make them look like Bill Clinton made the Republican Congress look when they shut down the government. Give ‘La Resistance” lots of publicity. Then cut its throat. Perhaps McConnell couldn’t do that procedurally or more likely there were plenty of other considerations that went into his thinking. In any case it is done and even though I think the filibuster had a place I think Harry Reid made it clear its time was past so we might as well get on wth it. I would also say that our Madisonian system provides an overabundance of obstructive power which has been amply demonstrated by the gridlock that results when we have divided government. What we got during Obama’s years was 2 years of government with Congress and 6 without which relied on easily reversed executive orders instead of harder to repeal duly passed and signed laws. The founders intended the Legislative branch actually participate in the governing of the country and I think it is better if they do.

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