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Joined: 11/29/2014 Posts: 1205
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Well, McConnell did state it that way, and this is unprecedented.

You can't excuse everything republicans do wrong by speculating that democrats would do the same thing. That sets up a sort of backwards race to the bottom. It's possible that democrats would do something similar, and they've certainly been too political in my view in recent confirmations. However, with the exception of Bork in 80s, they haven't refused a nomination on political grounds in recent history. And by my research, the democrats have never run out the clock on a nomination to allow the next president to choose. In fact, immediately after the Bork incident, they confirmed Raegan's appointment of Kennedy in the final year of Raegan's presidency, the same thing that current republicans have unconditionally refused to do before even hearing Obama's nomination.

By my research, there has only been one time since 1900 that an opposing Senate has ran out the clock on a nomination to allow the next president to pick. That was when Strom Thurmond and the GOP-controlled Senate ran out the clock on LBJ's appointment of Fortas--a sitting justice--to move over to Chief Justice. Based on that single incident, people have coined the so-called "Thurmond Rule," which says that judicial appointments immediately preceeding presidential turnover should not be confirmed. This "rule" has no legal basis whatsoever and is only a veiled attempt to legitimize what was then unprecedented political hijacking of the Supreme Court appointment process for a nominee who was indisputably qualified. That's why you can find quotes from McConnell and other republicans having recently denounced such a rule as non-existent. This is blatant hypocrasy to now go back on those pronouncements and block any Obama appointee under the same rationale.

Moreover, even if the "Thurmond Rule" were legitimate, it has never been used to block an appointment this far out from an election. Johnson nominated Fortas to be Chief Justice late June 1968. Assuming Obama announces a nomination by March 1, that's more than four months difference. In terms of the presidential race, the primaries were over when Fortas was nominated. We've only had two so far this year and there is still widespread uncertainty about what will happen.

Perhaps more important than the timing difference is the fact that the blocked Fortas nomination didn't leave an empty seat on the bench, whereas a blocked Obama appointment is likely to leave the Supreme Court with only eight justices for well over a year, which is yet another totally unprecedented possibility. Fortas was nominated to fill a vacancy created by Chief Justice Warren's pending retirement; and Warren did not leave the bench until a replacement was appointed. Since Scalia died, we are in a much more emergent situation to find a replacement. This makes the partisan hijacking of this process all the more egregious. It is critical that the court have an odd number of justices to decide controversial cases. 4-4 splits amount to a tremendous waste of resources and time and prolong harmful uncertainty in the law. For the same reason, the justices are likely to defer on granting new cases until they have an odd number for these same reasons. So delay in reappointment will likely neuter the court for the next year plus.

This is absolutely no way to govern. There's honor in losing an election but absolutely no honor in this policy of unconditional filibuster. We don't think about it often, but the legitimacy of our government and the fate of our nation rests in no insignificant part on the ability of those who lose elections to honor the results. The Constitution does not prohibit filibustering, but it relies on an understanding and tradition that it not be abused lest the whole system crumble. You wouldn't want Congress to grind to a halt every single election year to await the results, would you? There's no reason to think of the Court any differently. This threat to block any Obama nomination creates an unprecedented stress test for our constitutional system of separation of powers, and I'm absolutely going to blame the republicans in Congress for it, just like I would the democrats if they were doing the same thing. Don't sacrifice your integrity just because the politicians from your chosen party are or because you think the other party might do the same thing.

I said it in my last post: Left or right, this is flat wrong.

(In response to this post by DB)

Posted: 02/14/2016 at 2:22PM


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Current Thread:
  Great post... -- Gateway 02/14/2016 3:31PM
  Well, of course...duh.. -- Gateway 02/13/2016 9:17PM
  Constitutionalist -- Buffs4Ever 02/13/2016 8:54PM
  Re: Constitutionalist -- DB 02/13/2016 9:25PM

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