SCOTUS: How did we get here, and where are we going?

[darksabre]

We're currently living in a pretty weird timeline. Barring anything unusual happening, the SCOTUS is about to become the most conservative it has ever been. Trump will get his nominee with a simple majority. 

Before we get into where the Supreme Court is headed, I'd like to try to parse together how exactly it is that we got here in the first place. I think Democrat voters are mostly to blame for not showing up in 2016 when a Supreme Court seat was on the line, but there is also a lot of procedural stuff that I don't quite know the full story on. 

Hoping people can fill in the blanks for me, but my understanding is that there was essentially a gentlemen's agreement in place in Congress regarding the number of votes needed to confirm, but no hard and fast rule about it? 

The GOP delayed and delayed on the Garland nomination and when Democrats tried to stop it the GOP changed the "rules". 

Was this avoidable? Could there have been actual laws in place to prevent the delay of the Garland confirmation? Were there precedents that the Democrats set in the past that set this whole mess up? 

[Drunkard]

It was actually the Democrats who changed the rules. Republicans were blocking every Obama appointee back from 2008-2010 and Harry Reid used the "nuclear option" to drop the number of votes needed from 60 to a simple majority in order to push Obama's appointees through. I believe this was just for Court appointees though (including SCOTUS) and differs from the nuclear option for regular legislation which still requires 60 unless they manage to finagle it through whatever budgetary process they use for most legislation these days. That why tax cuts are typically not said to be permanent because the budgetary rules used to pass them expire within 10 years by rule and they must be passed again to remain in effect.  

Edited July 5, 2018 by Alkoholist

[darksabre]

3 minutes ago, Alkoholist said:

It was actually the Democrats who changed the rules. Republicans were blocking every Obama appointee back from 2008-2010 and Harry Reid used the "nuclear option" to drop the number of votes needed from 60 to a simple majority in order to push Obama's appointees through. I believe this was just for Court appointees though (including SCOTUS) and differs from the nuclear option for regular legislation which still requires 60 unless they manage to finagle it through whatever budgetary process they use for most legislation these days. That why tax cuts are typically not said to be permanent because the budgetary rules used to pass them expire within 10 years.  

I think this is right. I know the Dems were catching a lot of blame for basically coming up with the tactic that the GOP turned around and used on us. I think that happens a lot...

[LGR4GM]

Actually, they specifically exempted the SCOTUS from the nuclear option when they did it. Mitch McConnell then nuked the SCOTUS 60 vote threshold because Garland was a crappy choice that isn't about him being conservative. There were far better qualified conservative justices. 

6 minutes ago, darksabre said:

I think this is right. I know the Dems were catching a lot of blame for basically coming up with the tactic that the GOP turned around and used on us. I think that happens a lot...

Yup. Almost like both parties are full of s##t. 

Edited July 5, 2018 by Skurk Liger

[Drunkard]

2 minutes ago, darksabre said:

I think this is right. I know the Dems were catching a lot of blame for basically coming up with the tactic that the GOP turned around and used on us. I think that happens a lot...

They warned Harry Reid before he did it that it was going to backfire on him and that's what's happening now. The Tea Party wave hit in 2010 and that was all she wrote with respect to any Democratic agenda. He didn't exactly have much choice though. Republicans were simply stonewalling everything at that point so it was either the nuclear option or get nobody appointed. I had never seen leaders of the minority part flat out say that their main goal was to obstruct at all costs. It may be too late for the Supreme Court but if the Democrats manage to take control of either the House or the Senate after the midterms, they should probably take a page from that playbook.

[darksabre]

So let's talk about that 60 vote threshold. Why was it so easy to eliminate it? Should the Democrats have done so? Would the GOP have just done it anyway once the cat was out of the bag that it was an option? 

It looks to me like the Democrats sacrificed a number of SCOTUS noms just to fill some lower courts. That seems...short sighted. 

[LGR4GM]

It is one way the Democracy is dangerously close to falling apart. The opposition party just blatantly obstructing everything. This goes for Dems or Repubs

Just now, darksabre said:

So let's talk about that 60 vote threshold. Why was it so easy to eliminate it? Should the Democrats have done so? Would the GOP have just done it anyway once the cat was out of the bag that it was an option? 

It looks to me like the Democrats sacrificed a number of SCOTUS noms just to fill some lower courts. That seems...short sighted. 

I think the GOP would have done it once Trump was elected to be honest. It is easy to do because I think eliminating the or changing the vote rules only required a majority vote by the senate. 

[darksabre]

Would it have been better if the rule were unable to be changed? The Obama admin wouldn't have gotten its lower court appointments, but the GOP wouldn't be getting several SCOTUS justices. 

How few justices could the SCOTUS have? We would be down to 7 right now if the 60 vote rule were still in place. 

[Drunkard]

This is exactly why all those Evangelicals were willing to look past Trump's language, multiple divorces, cheating, etc. He put out that list of judges and that sealed it. Ironic that a guy that I don't think is religious whatsoever may do more to forward the evangelical agenda than any evangelical has been able to.

I think Roe v Wade is toast at this point.

[darksabre]

2 minutes ago, Alkoholist said:

This is exactly why all those Evangelicals were willing to look past Trump's language, multiple divorces, cheating, etc. He put out that list of judges and that sealed it. Ironic that a guy that I don't think is religious whatsoever may do more to forward the evangelical agenda than any evangelical has been able to.

I think Roe v Wade is toast at this point.

wrt to RvW, yeah, probably. That probably deserves its own thread...

The Democrats really missed the boat in 2016 with messaging about the Supreme Court. It was legit the only topic I was voting on. Half my friends had no idea it was even a concern. It should have been the one singular issue of the entire election season for Democrats. Naturally, they failed at basic politics. 

[Drunkard]

25 minutes ago, darksabre said:

wrt to RvW, yeah, probably. That probably deserves its own thread...

The Democrats really missed the boat in 2016 with messaging about the Supreme Court. It was legit the only topic I was voting on. Half my friends had no idea it was even a concern. It should have been the one singular issue of the entire election season for Democrats. Naturally, they failed at basic politics. 

Yep. I always thought abortion and guns were side issues. Not because they aren't important (they are) but because both sides relied on them as a boogeyman to demonize the other side and neither side would actually ever get it overturned.

I figured Democrats would never really try to ban guns because if they ever actually achieved it they'd never win another national election. I also figured if the Republicans ever actually overturned Roe v Wade they'd never win another national election. I think I'm about to be able to put my hypothesis to the test.

https://www.nytimes.com/2018/06/28/us/politics/trump-anthony-kennedy-retirement.html

Apparently Trump has been lobbying behind the scenes to get a member of SCOTUS to retire. Not a bad reminder to his base about what's at stake in the midterms, especially since the party already out of power typically tends to be more energized.

We'll see which side is more motivated come November. 

It also seems like it should be a concern that Trump has business dealings/loans with Kennedy's son. Under any other administration that would probably raise an eyebrow, but this is a President that refused to put his assets in a blind trust. Nothing applies to this guy.

Edited July 5, 2018 by Alkoholist

[LGR4GM]

The interesting thing in this upcoming election is the shift in voting age we should see. Millennials are the biggest voting block now. If they vote en mass  then it could sway the election 1 way or the other. Should be interesting.

[bob_sauve28]

1 hour ago, Alkoholist said:

This is exactly why all those Evangelicals were willing to look past Trump's language, multiple divorces, cheating, etc. He put out that list of judges and that sealed it. Ironic that a guy that I don't think is religious whatsoever may do more to forward the evangelical agenda than any evangelical has been able to.

I think Roe v Wade is toast at this point.

How far out of public opinion can the court go? Even super Conservative Ireland saw the voters ok abortion. The GOP is nauseous right now at the thought of an unelected court criminalizing something like that. I'm a liberal Democrat and the court thing does not have me too worried. Maybe it should, but, if the court starts declaring every single law the Democrats pass unconstitutional then there will be change to the court. There is no set limit to court members. Jefferson, Lincoln and others have added judges. If these judges get to crazy, they can be diluted. I doubt it comes to that though. 

[Drunkard]

8 minutes ago, bob_sauve28 said:

How far out of public opinion can the court go? Even super Conservative Ireland saw the voters ok abortion. The GOP is nauseous right now at the thought of an unelected court criminalizing something like that. I'm a liberal Democrat and the court thing does not have me too worried. Maybe it should, but, if the court starts declaring every single law the Democrats pass unconstitutional then there will be change to the court. There is no set limit to court members. Jefferson, Lincoln and others have added judges. If these judges get to crazy, they can be diluted. I doubt it comes to that though. 

I think we'll find out soon. One thing about Republicans is they don't seem to be swayed as much by public opinion as the other side. We could easily see abortion banned in as many as 20 states if they overturn RvW. It's been in place since 1973 and it's already nearly impossible to get one in certain states as it is.

[Randall Flagg]

The court has nothing to do with public opinion, no? Judicial review is judicial review regardless of how Sally or Joe feel about the particular law they're looking at (and the last thing they generally care about is its constitutionality, which is the ONLY thing the SC cares about, no?)

[That Aud Smell]

I regret the trend toward the Senate having such a fine-toothed comb, even obstructive, approach to the POTUS's nominees for the SCOTUS. I'm not a student of history, but, in my mind, the trend took hold firmly with Bork (Reagan). And that was the Dems doing it. Just a bad idea, IMO.

The way the thing was set up for generations, again as best I understand it, was that the Senate was vetting these people to make sure there wasn't something egregiously wrong with them. It wasn't used as a forum to wage a sort of non-electoral skirmish over political ideologies. The candidate is progressive and liberal, like the person who's POTUS? Welp, to the victor go the spoils. The candidate is an originalist and conservative, like the POTUS (or the POTUS's people (in the case of Trump))? Welp, like I said.

I also wonder about Ruth Bader Ginsburg: Such a mythical darling of so many young Dems. But why the funk didn't she retire when Obama was re-elected? Now she's gotta outlive Trump.

[Drunkard]

3 minutes ago, That Aud Smell said:

I regret the trend toward the Senate having such a fine-toothed comb, even obstructive, approach to the POTUS's nominees for the SCOTUS. I'm not a student of history, but, in my mind, the trend took hold firmly with Bork (Reagan). And that was the Dems doing it. Just a bad idea, IMO.

The way the thing was set up for generations, again as best I understand it, was that the Senate was vetting these people to make sure there wasn't something egregiously wrong with them. It wasn't used as a forum to wage a sort of non-electoral skirmish over political ideologies. The candidate is progressive and liberal, like the person who's POTUS? Welp, to the victor go the spoils. The candidate is an originalist and conservative, like the POTUS (or the POTUS's people (in the case of Trump))? Welp, like I said.

I also wonder about Ruth Bader Ginsburg: Such a mythical darling of so many young Dems. But why the funk didn't she retire when Obama was re-elected? Now she's gotta outlive Trump.

Even after Obama got re-elected the Republicans still controlled the House and Senate so they would have need a few Republicans to confirm his pick. While it's not super likely they would have been able to stonewall an Obama appointee for 4 years they may have tried and possibly even succeeded. Obama would've probably been able to get a moderate like Garland to replace Ginsberg and the court would have shifted to the right. Or it's possible they would have been successful stonewalling him for all 4 years and Trump would be looking at appointing his 3rd person instead of his 2nd.

[That Aud Smell]

Just now, Alkoholist said:

Even after Obama got re-elected the Republicans still controlled the House and Senate so they would have need a few Republicans to confirm his pick. While it's not super likely they would have been able to stonewall an Obama appointee for 4 years they may have tried and possibly even succeeded. Obama would've probably been able to get a moderate like Garland to replace Ginsberg and the court would have shifted to the right. Or it's possible they would have been successful stonewalling him for all 4 years and Trump would be looking at appointing his 3rd person instead of his 2nd.

Interesting thought. But ... I dunno, man. If there were a time to get a Dem-appointed successor to the Court's oldest member, that was it. Maybe she thought/presumed HRC would win.

[Drunkard]

2 minutes ago, That Aud Smell said:

Interesting thought. But ... I dunno, man. If there were a time to get a Dem-appointed successor to the Court's oldest member, that was it. Maybe she thought/presumed HRC would win.

It was a gamble they lost and lost bad for sure. One thing I can say is that I'm more interested in seeing the results of these midterms than any previous midterms I've ever personally witnessed.

I don't have a ton of faith in my generation to go out and vote in force, but I'm hoping they surprise me.

[Samson's Flow]

1 hour ago, Alkoholist said:

This is exactly why all those Evangelicals were willing to look past Trump's language, multiple divorces, cheating, etc. He put out that list of judges and that sealed it. Ironic that a guy that I don't think is religious whatsoever may do more to forward the evangelical agenda than any evangelical has been able to.

I think Roe v Wade is toast at this point.

I came in here to say that the biggest thing I am concerned about with the latest SCOTUS retirements and nominations is the decision on Roe v. Wade and the change in abortion legalization. This is a drastic divergence from the established policies of much of the developed world, and could turn into a huge voting motivator for the younger public at the next election cycle.

I fear the Roe v. Wade decision will make our political landscape even more divisive in the next few years.

1 hour ago, Skurk Liger said:

The interesting thing in this upcoming election is the shift in voting age we should see. Millennials are the biggest voting block now. If they vote en mass  then it could sway the election 1 way or the other. Should be interesting.

Exactly. This conservative SCOTUS is bound to piss off a lot of Millennial voters and motivate them to make changes through their vote in order to change the course. One of the biggest things in American Politics is to avoid giving your opponents something to rally behind to incite their voting base.

6 minutes ago, Alkoholist said:

It was a gamble they lost and lost bad for sure. One thing I can say is that I'm more interested in seeing the results of these midterms than any previous midterms I've ever personally witnessed.

I don't have a ton of faith in my generation to go out and vote in force, but I'm hoping they surprise me.

If there isn't record turnout for the midterms coming up, then I don't know what will do it. 

I think enough people are seeing what happens when they pull the ostrich in the sand strategy...

[darksabre]

8 minutes ago, That Aud Smell said:

Interesting thought. But ... I dunno, man. If there were a time to get a Dem-appointed successor to the Court's oldest member, that was it. Maybe she thought/presumed HRC would win.

I think they thought this. They didn't want to have to replace RBG with someone more moderate at the time. But...

What they should have done was have RBG retire in 2013 right after Obama was elected, and then let the GOP stonewall the nomination and turn the 2014 midterm into referendum. That would have been forward thinking politics from the Democrats. Of course the caveat would have been that the Dems would have had to turn out in 2014 like they're going to have to now in 2018.

Obama was probably the guy to make it happen and the party completely failed to use him. 

[Samson's Flow]

5 minutes ago, darksabre said:

I think they thought this. They didn't want to have to replace RBG with someone more moderate at the time. But...

What they should have done was have RBG retire in 2013 right after Obama was elected, and then let the GOP stonewall the nomination and turn the 2014 midterm into referendum. That would have been forward thinking politics from the Democrats. Of course the caveat would have been that the Dems would have had to turn out in 2014 like they're going to have to now in 2018.

Obama was probably the guy to make it happen and the party completely failed to use him. 

Some of this was the Dems own undoing, as they couldn't have imagined the gains the Reps have made in the last few years coupled with Trump beating out Hillary. I know this is monday morning qb'ing, but remember that it was quite a shock during the Presidential election and every projection had HRC leading the night before. I think many of the Dem's were overconfident and thought their political landscape would get better instead of worse in 2016.

[darksabre]

1 minute ago, Samson's Flow said:

Some of this was the Dems own undoing, as they couldn't have imagined the gains the Reps have made in the last few years coupled with Trump beating out Hillary. I know this is monday morning qb'ing, but remember that it was quite a shock during the Presidential election and every projection had HRC leading the night before. I think many of the Dem's were overconfident and thought their political landscape would get better instead of worse in 2016.

This is what happens when you live in a blue state. You don't see the wave coming. I didn't think Hillary was going to lose until I went with Josie to Ohio that fall and saw the chaos. Then I got worried. Her losing felt inevitable to me by the time we got to election night. I was feeling very "because Buffalo" about it all.

Why did Hillary lose? "Because Democrats".

[Drunkard]

6 minutes ago, Samson's Flow said:

Some of this was the Dems own undoing, as they couldn't have imagined the gains the Reps have made in the last few years coupled with Trump beating out Hillary. I know this is monday morning qb'ing, but remember that it was quite a shock during the Presidential election and every projection had HRC leading the night before. I think many of the Dem's were overconfident and thought their political landscape would get better instead of worse in 2016.

Even if Hillary had won though the Senate still would have been controlled by the GOP. Therefore the GOP would still be leading the subcommittees in charge of rubber stamping appointments and it still would have relied on Mitch McConnell allowing an up or down vote.

[Samson's Flow]

Just now, darksabre said:

This is what happens when you live in a blue state. You don't see the wave coming. I didn't think Hillary was going to lose until I went with Josie to Ohio that fall and saw the chaos. Then I got worried. Her losing felt inevitable to me by the time we got to election night. I was feeling very "because Buffalo" about it all.

Why did Hillary lose? "Because Democrats".

Interesting.

I also worry when the people in Ohio and Florida are the ones with the most power to select our president. If you've ever heard Shredd & Regan's "OTF" segment in the mornings, you would realize how much questionable goes down in Ohio/Texas/Florida. 

1 minute ago, Alkoholist said:

Even if Hillary had won though the Senate still would have been controlled by the GOP. Therefore the GOP would still be leading the subcommittees in charge of rubber stamping appointments and it still would have relied on Mitch McConnell allowing an up or down vote.

Good point.