Supreme Court has voted to overturn abortion rights, draft opinion shows

[crazy canuck]

I think you are ignoring the once important role of constitutional norms. Constitutions are not the same as rulebooks.

[bogh]

I don't buy the "politics as a game and whoever games the rules better is a legitimate winner" approach. Our political entities and norms should transcend the formal rules as written. The GOP has decided to impose their will, not persuade others to their point of view. That is fundamentally at odds with the underlying foundations of democracy. Hiding behind loop holes and rules lawyering does not disguise that fact.

[Sheilbh]

I think you are ignoring the once important role of constitutional norms. Constitutions are not the same as rulebooks.

The constitutional norms are that these tools were used by the slavery interest, by segregationists, by anti-Progressives at the turn of the twentieth century and by anti-New Dealers. In fact I think the constitutional norm of there not being a blocking group weaponising the constitution's counter-majoritarian provisions is something that only really applies for a few decades of the twentieth century.

My point here isn't that what the GOP is doing is good or right - but that it is derived and based from the tools and institutional framework of the constitution. It is incredibly counter-majoritarian and puts a huge amount of power, if they're motivated, in the hands of minority political interests. So I think it's wrong to frame it as illegitimate or cheating because I think that gets the problem wrong - it's similar to my issue with the "defend institutions" approch. The institutions - the Senate, the Courts, the Electoral College - are what have enabled this strategy.

Similarly I think the solution is probably similar to what happened in the Progressive era and the New Deal and civil rights of using every democratic avenue you've got (as opposed to giving up on states/only viewing them through a presidential election lens which seems to have happened after Howard Dean or whatever has gone wrong with state level races since 2008), pushing them (where you can) to a more democratic approach and building/working with political movements outside of these institutions, which are counter-majoritarian, to increase the pressure on them. Cults of personality about individuals inside these institutions - whether it's Robert Mueller, James Comey or RBG - are not going to save the day; neither will yearning for a return of "normal order".

[The Minsky Moment]

On Garland, I agree with grumbler and Berkut.  What McConnell did was unconstitutional.  The President has the power to make the appointment. The Senate may give its advice, and they may refuse their consent, but they cannot simply ignore or refuse to act on the appointment. To do so unconstitutionally denies the Presidential appointment power.  They got away with it because the Constitution does not contain an enforcement mechanism to compel the US Senate to perform its constitutional obligations other than wait for the next election.  There is an important distinction between bad faith use of a authority conferred under the constitution - which is bad but legitimate - and usurpation of authority the constitution does not confer but for which there is no effective enforcement mechanism - which may be good or bad but is not legitimate.

[alfred russel]

On Garland, I agree with grumbler and Berkut.  What McConnell did was unconstitutional.  The President has the power to make the appointment. The Senate may give its advice, and they may refuse their consent, but they cannot simply ignore or refuse to act on the appointment. To do so unconstitutionally denies the Presidential appointment power.  They got away with it because the Constitution does not contain an enforcement mechanism to compel the US Senate to perform its constitutional obligations other than wait for the next election.  There is an important distinction between bad faith use of a authority conferred under the constitution - which is bad but legitimate - and usurpation of authority the constitution does not confer but for which there is no effective enforcement mechanism - which may be good or bad but is not legitimate.

There are a zillion positions that require senate approval: does this apply to all of them or just USSC justices?

If their advice to Obama was to appoint a young and conservative member of the federalist society, and he declined to do so and thus they refused to act as they refused to take the advice of the senate, would that be kosher in your view?

[DGuller]

As far as legitimacy of the court goes, I'm not sure why Democrats are supposed to be concerned about damaging it.  If anything, they should be aiming to remove it.  Letting the court keep its legitimacy just gives it more power to inflict fatal damage to democracy.

[Sheilbh]

On Garland, I agree with grumbler and Berkut.  What McConnell did was unconstitutional.  The President has the power to make the appointment. The Senate may give its advice, and they may refuse their consent, but they cannot simply ignore or refuse to act on the appointment. To do so unconstitutionally denies the Presidential appointment power.  They got away with it because the Constitution does not contain an enforcement mechanism to compel the US Senate to perform its constitutional obligations other than wait for the next election.  There is an important distinction between bad faith use of a authority conferred under the constitution - which is bad but legitimate - and usurpation of authority the constitution does not confer but for which there is no effective enforcement mechanism - which may be good or bad but is not legitimate.

But also isn't AR's point fair. The Senate is in charge of its own time as a legislature - it can't be compelled to look at things by the executive. There are thousands of posts across the US system that require confirmation (which is perhaps something that's grown by accident in the last 100 years). But surely it's up to the Senate how to allocate time and when to hear those appointees? They can't be forced into it and it feels like - in the context of the US system - that would be an overreach by the executive.

Obviously McConnell got rid of the filibuster on judicial nominees - so I get the bad faith point, and I think is fair. But surely it's no different than a group of Senators coming out and saying they'll filibuster a nominee no matter what - which had been a thing that happens for many decades. It's just a party doing it rather than a gang. Is there much of a difference between a group of Senators blocking Abe Fortas by filibuster v the Majority Leader saying he'll block a nominee?

[alfred russel]

Obviously McConnell got rid of the filibuster on judicial nominees

Not entirely: Harry Reid got rid of it for judicial nominees other than the USSC, and McConnell got rid of it for USSC nominees.

[chipwich]

As far as legitimacy of the court goes, I'm not sure why Democrats are supposed to be concerned about damaging it.  If anything, they should be aiming to remove it.  Letting the court keep its legitimacy just gives it more power to inflict fatal damage to democracy.

Then the abortion protections go away since Roe is the paper shield that keeps states from banning abortion.

[Berkut]

As far as legitimacy of the court goes, I'm not sure why Democrats are supposed to be concerned about damaging it.  If anything, they should be aiming to remove it.  Letting the court keep its legitimacy just gives it more power to inflict fatal damage to democracy.

Then the abortion protections go away since Roe is the paper shield that keeps states from banning abortion.

Psssst. That is already going away.

Which is kind of the point.

[Barrister]

On Garland, I agree with grumbler and Berkut.  What McConnell did was unconstitutional.  The President has the power to make the appointment. The Senate may give its advice, and they may refuse their consent, but they cannot simply ignore or refuse to act on the appointment. To do so unconstitutionally denies the Presidential appointment power.  They got away with it because the Constitution does not contain an enforcement mechanism to compel the US Senate to perform its constitutional obligations other than wait for the next election.  There is an important distinction between bad faith use of a authority conferred under the constitution - which is bad but legitimate - and usurpation of authority the constitution does not confer but for which there is no effective enforcement mechanism - which may be good or bad but is not legitimate.

There have been lots of appointments made when the opposite party controlled the Senate.

David Souter comes to mind.  He was picked by Bush 41 as someone with no apparent history on abortion so he was able to get past the Democratic-controlled Senate.  The Senate certainly wasn't too shy about rejecting nominees (hello Judge Bork) but there was more of a give-and-take between the Presidency and the Senate.

[The Minsky Moment]

There are a zillion positions that require senate approval: does this apply to all of them or just USSC justices?

It's just judges, ambassadors, executive officers.  There are quite a few but not zillions.
And yes - the constitutional requirement applies to all.  Of course there a differences in significance between a Supreme Court justice and undersecretary of labor.  But the same principle applies - the Senate can refuse to consent the appointment but it can't take the position it can ignore it.

The Senate is in charge of its own time as a legislature - it can't be compelled to look at things by the executive. There are thousands of posts across the US system that require confirmation (which is perhaps something that's grown by accident in the last 100 years). But surely it's up to the Senate how to allocate time and when to hear those appointees?

1. It is not the executive that compels them, it is the constitution. Congress set up the federal judiciary, including the number of justices.

2. McConnell made it quite clear that the issue wasn't about having sufficient time to schedule hearings - obviously there were - but that the Senate would not hold hearings on principle.  So it's really a non sequitur in this context.

Is there much of a difference between a group of Senators blocking Abe Fortas by filibuster v the Majority Leader saying he'll block a nominee?

Yes there is a big difference.  The objection to Fortas was an objection to Fortas.  Thus it implicates the Senate's prerogative to deny consent to individual nominees.

The objection to Garland was not to Garland.  It is a certainty that if HRC were elected and if (hypothetically) the Senate composition had not changed, Garland would have been confirmed. The objection was to performing the Senate's constitutional duty at all.  And that is what made it illegitimate.

[The Minsky Moment]

There have been lots of appointments made when the opposite party controlled the Senate.

David Souter comes to mind.  He was picked by Bush 41 as someone with no apparent history on abortion so he was able to get past the Democratic-controlled Senate.  The Senate certainly wasn't too shy about rejecting nominees (hello Judge Bork) but there was more of a give-and-take between the Presidency and the Senate.

Correct.  And Garland was exactly that kind of appointment.  He was selected precisely because he was unobjectionable and could pass confirmation in the GOP controlled Senate.  That's the system working as designed.  Refusing to hold a hearing is not.  In 87 the Democrats held the hearing and rejected Bork - they did their job and accepted accountability of their action.  They didn't take the position they could ignore the appointment because there would be a Presidential election the next year.

[The Minsky Moment]

Obviously McConnell got rid of the filibuster on judicial nominees

Not entirely: Harry Reid got rid of it for judicial nominees other than the USSC, and McConnell got rid of it for USSC nominees.

FWIW I don't have a problem with either of those decisions.  The modern Senate filibuster is also a constitutionally dubious mechanism.

[chipwich]

As far as legitimacy of the court goes, I'm not sure why Democrats are supposed to be concerned about damaging it.  If anything, they should be aiming to remove it.  Letting the court keep its legitimacy just gives it more power to inflict fatal damage to democracy.

Then the abortion protections go away since Roe is the paper shield that keeps states from banning abortion.

Psssst. That is already going away.

Which is kind of the point.

So you don't want abortion rights to ever come back.