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The president gets to nominate SC justices. Customarily (see @guesswho's remark about trust), the Senate almost always accepts them, even when the president is from an opposing party. It has rejected them on occasion (or nominees have been withdrawn when it was clear they were headed for rejection). Garland was neither rejected nor withdraw. McConnell simply refused to hold a hearing or consider the nomination.
Yes, in theory, the Senate can do whatever it wants. In reality, what McConnell did was extremely unusual, compounded by the handling of ACB's nomination making it clear that his arguments with respect to Garland were unambiguously in bad faith. If you keep mashing the defect button, don't be surprised when your opposition starts Noticing.
And nobody is arguing that this was disrupted.
It was perfectly usual, in that it was the usual escalation that can be traced back to Bork, at the very least. This was thirty years of chickens coming home to roost, and was perfectly in line with previous escalations from both sides.
YES! THAT IS EXACTLY WHAT HAPPENED! Except it was the Republicans who finally Noticed, and truly defected rather than be played for chumps.
You still haven't answered the question. To whom does the stolen seat belong? From my perspective, it belongs to Gorsuch, because he's the one who the Senate confirmed.
All of these problems are directly downstream from 17A, by the way.
I am. I'm arguing it. Obama nominated a candidate and McConnell sat on it for a year.
Bork always gets wheeled out as the excuse, but it's total bullshit. Bork was rejected (unusual but far from unprecedented) and replaced with... another Reagan nominee. Who was confirmed. In other words, what we'd expect to happen. If McConnell had specific issues with Garland as a nominee, he should have held a hearing and voiced them. Of course, he didn't, because he didn't have a problem with Merrick Garland. He openly declared he wasn't going to consider any nominee.
The seat doesn't 'belong' to anyone because it's not a piece of property, but by long-standing American political norms it was Obama's prerogative to fill the seat. Word games and playing dumb about idiomatic use of the word 'stole' can't duck the GOP's flagrant breach of trust.
That would imply that the Republicans weren't defecting constantly, when in fact that was pretty the standard playbook since the end of the cold war.
So what?. Obama nominated someone and sent the nominee to the Senate. The Senate didn't confirm the nominee, and made it clear he wouldn't be confirmed at all. It was Obama's prerogative to nominate someone, and he could have withdrawn the nomination and tried someone else, but chose not to in order to make people like you think that it was somehow stolen.
It doesn't belong to anyone, and it was not stolen. The President nominates, the Senate fills. There's no reason why the Senate must consider any nominee, and may reject or refuse to consider any of them as they please. This is called the separation of powers, and while it hasn't had a good time of things, there are still some places where it is relevant.
Your political norms are just that, norms, not law, not even rules, and certainly not constitutional directive. They were broken when Bork was rejected on ideological grounds, rather than competency grounds. That was the first major escalation, and it has gone back and forth since then. Other norms were violated and are no longer normal. Of course the latest round is more significant than the original offense, that's why it's escalating.
Better than implying it's only Republicans defecting, when it is clearly tit for tat. I'd be much more sympathetic to the Democrats if it wasn't their party who reduced the Senate threshold for nomination in order to appoint dozens of Obama judges, but I understand they did that in order to get around disagreements from the minority who would not confirm those judges. To get hoisted by your own petard is shameful enough, there's no need for further griping.
To deny that denying Obama a replacement for RBG was not a major escalation by the GOP is to deny obvious reality.
“But they started it with Bork” doesn’t mean McConnell didn’t choose a massive escalation some decades later to change the balance of justices, which the former case did not do and was never intended to.
And I say that as someone quite happy with a strong conservative majority.
Why was Obama entitled to a replacement for RBG? What replacements are Conservatives entitled to, and how is this entitlement adjudicated or enforced?
No such entitlement exists, has ever existed, or ever will exist. There is no legal requirement that the Supreme Court be "balanced", or that either side receives any representation in it beyond what they can secure through winning elections. Progressives abused the Court for decades, claiming that the "Living Constitution" and its emanations and penumbras allowed them to arbitrarily shape the nation's laws. Progressives trampled Conservatives' constitutional and human rights with abandon, and continue to do so to this day.
There has never been a point in living memory when the Supreme Court was not an ideological weapon, only points when that weapon was wielded according to the preferences of partisans of one stripe or the other. Well, live by the sword, die by the sword.
It’s not about “entitled” so much as “stable norm” that was significantly disrupted. There have been many tits and tats regarding both the senate’s rules and the Supreme Court, and this was a big one.
I can agree with you about progressives torturing the plain reading of the law and still note that blockading a president getting to seat a justice during his term was a significant escalation by the GOP. It has paid off in the short term but the longer effects remain to be seen, and I dislike the further degradation of norms by default.
Taking the cynicism of “all that matters is what you can get away with” is not great when either side does it, even when in this case I prefer a conservative tilt. Our constitutional system relies a lot on goodwill and norms and both sides have taken big whacks at it while only being able to see what the other side has done.
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It really wasn't that massive of an escalation, and while Bork was the start, it wasn't payback thirty years in the making, it was payback about three years in the making, since it was 2013 where Democrats decided that a simple majority was sufficient. That was the sign that judges are no longer a bipartisan affair, but rather simply the force of the majority. It was a mistake, a bad one, and one that cost the Democrats immediately. I don't know why you're trying to recast it as some standalone injustice instead of the tit matching the Democrat's tat.
It's very simple. If Harry Reid doesn't strip all power from the majority in 2013, then McConell doesn't retaliate in 2016 when Scalia dies. Reid didn't do it out of nowhere, he was reacting to the Republican stonewalling. The republicans didn't just stonewall for no reason, they had grievances going back beyond that. And so on. Bork is a half-dozen turns backward on the screw.
It obviously was a massive escalation. Even if you can’t agree on that, at least consider the left believes it to be one because they lost out on a seat. (Had Hillary won, then it would have been a disruption to the norm, but not have changed the court’s balance.)
Senate rules are a total shit show in an era when norms have been significantly disrupted. I’d prefer that trend stop, even when in any particular case the result is one I favor.
This was a big tat. You can argue it was justified and clearly it has paid off in the short term, but arguing it was not a big tat just seems ridiculous. Had the other side done it I would be having the same discussion but some people here would be flipped.
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