What is Schumer trying to do in SCOTUS?


I don't get it.  Many will think that is my problem in a lot of areas of thought.  Nevertheless, Schumer's stated decision to resist Gorsuch's confirmation to the bitter end seems strange to me.  The Republicans have the numbers in the senate to change the rules of that body to allow a simple majority confirmation and will surely do that if they must.  If they do that, then future confirmations will be made by that rule.  Ginsburg and Kennedy are both over 80 and could depart at any time for medical reasons.  Are the Democrats gambling that these people can stay on past 2018 and that the GOP will lose control of the senate ?  That is a very risky bet.  If they lose that bet they could end up with a 7 to 2 conservative majority in SCOTUS for a very long time.   We must remember that Harry Reid in his time as majority leader changed the senate rules to allow simple majority confirmations on all non-SCOTUS presidential appointments.  It also occurs to me (as a non-lawyer) that I know of no requirement in constitution or law for there to be committee hearings before a full vote in the senate.  pl  



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24 Responses to What is Schumer trying to do in SCOTUS?

  1. steve says:

    The GOP could change the rules now, or they could change it with the next nomination. Since the GOP can change the rule anytime they want, I don’t see much risk for Schumer. They want revenge for Merrick Garland. Schumer needs to posture for his base.

  2. NotTimothyGeithner says:

    Politics and the long term effects of “keep the powder dry” Harry Reid.
    The Democrats used the filibuster as an excuse when in power to not pass a host of issues they made promises on such as the public option, cap and trade, raising cap gains taxes etc. If Democratic voters and certain donors catch on to the fraud, how long will the elected Democrats last? Given the anger over losing the Queen to a casino operator, how will Democratic partisans view an elected who works with Trump?
    To address your point about future confirmation battles versus the Gorsuch nomination, Hillary primary voters aren’t exactly a rationale lot. They lost their coronation party and simply backed a bad candidate with high negatives because of misplaced loyalty and their own laziness. Schumer can’t rely on Sanders supporters given his own primary behavior and connections to the Clintons.
    In 1987, Bork received a floor vote when there was no way he would win, but the Republican Senators needed to put on a song and dance for their voters when those same senators wanted the nomination pulled. They knew they would lose the vote. There were 58 no votes.
    For those not familiar with Harry “Keep the Powder Dry” Reid, see the above. This sentiment is part of the Democratic zeitgeist. It’s why Hillary kept repeating her credentials as a “fighter.” There is a perception Democratic elites are more closely aligned to Republican elites than their own voters and tend to roll over or lose political battles because they prefer the policies of the other party. The beauty here is Schumer knows he doesn’t need to deliver Democratic votes, so he can get his guy and appease his voters. If the seat sits empty, who cares? This is key too. Nine is not constitutionally mandated but congressionally mandated as a limit. If the Court isn’t backed up, what is the motivation to go from eight to nine? Why not go to seven?

  3. Edward Amame says:

    You’re assuming that McConnell’s getting 51 GOP votes to end the filibuster for SCOTUS nominees is a given. Maybe not so simple.
    Schumer’s a lot of things but stupid’s not one of them. However, IMO it’s a risky move.

  4. turcopolier says:

    Yes. I am assuming that. I think it will quite easy to do. pl

  5. turcopolier says:

    And make it seven to zero? pl

  6. Jack says:

    Schumer knows he’s not going to win this fight. So why not play to the gallery and milk it for what its worth. I don’t think he’ll push it that far to force the Republicans to eliminate the super majority to bring a SCOTUS nomination to the floor.
    The Democrats are in a precarious situation. They lost more state houses and legislatures under Dear Leader than any other Democrat President. They are now one state away from the GOP having the ability to call a constitutional convention which IMO is very dangerous.

  7. ex-PFC Chuck says:

    Quoting NTG: “There is a perception Democratic elites are more closely aligned to Republican elites than their own voters and tend to roll over or lose political battles because they prefer the policies of the other party.”
    In this case the perception matches reality.

  8. ex-PFC Chuck says:

    McConnell won’t let it get to the floor unless he knows for certain that he’s got the votes.
    From an OpEd today at Roll Call:
    “The Kentucky Republican, long known for his sixth-sense acumen as a political and legislative strategist, completely avoided the direct and collateral damage of the GOP health care debacle of 2017.”

  9. Fred says:

    Why on Earth would the GOP call a constitutional convention? There would be no surer way of destroying the Republic than doing that.

  10. turcopolier says:

    fred et al
    I have looked at the constitutional convention as a possible future and I agree with fred. Once launched it would be uncontrollable, like the last one. pl

  11. Bill H says:

    Re: “If the seat sits empty, who cares?”
    Donald Trump and the entire Republican Party care. They just lost embarrassingly on “health care reform.” Do you think they are going to cheerfully accept another debacle at this point? Not likely.

  12. Peter Reichard says:

    Fred and Pl
    There has long been a below the radar movement to spring a constitutional convention on us. Brzezinski proposed the 200th anniversary of either the revolution or the constitution as a propitious time to advance this agenda. In the early 80’s with almost no publicity we came within one or two state legislatures of successfully calling for one. Later the excuse was that we needed one strictly limited to passing a balanced budget amendment but as PL pointed out the last one way overstepped its authority. Fred is right that there is no surer way to destroy the republic.

  13. Procopius says:

    The filibuster had nothing to do with Obama throwing away the public option. He said at the time, he couldn’t get the votes for it. I think he was relying too much on Rahm Emanuel’s opinion, and he hated it from the get go, but the filibuster wasn’t part of the (stated) calculation.
    The “Keep the Powder Dry” people are insane. If the Republicans don’t kill the filibuster now because the Democrats don’t use it, they certainly will when the Democrats try to use it against some former nominee. A tool that you know will break if you use it is not much use.
    You’re absolutely right about the court not being backed up. If anything, their decisions have actually been better since Scalia went to a better place. I think we could let the number go down to five without any problem, but I feel the surviving smaller number would be the most conservative, probably including Roberts, Alito, and Thomas. On the other hand, Thomas seems to be evolving now that Scalia isn’t influencing him. He recently had some very sensible things to say about civil forfeiture, which has always been an obvious violation of the Fifth Amendment. I think any number of justices less than five would be too few.

  14. ex-PFC Chuck says:

    Re: “Once launched it would be uncontrollable, like the last one. pl”
    Not necessarily, if a faction comes into it having done thorough job of both ideological and political preparation within most of the states, such as what ALEC has been doing on behalf of its zillionaire owners. Other delegates might arrive at the convention to find the organizational procedures and agenda stacked.
    From an Alternet piece in January:
    “This September, the group Convention of States convened what it claimed was the first simulated constitutional convention in the nation’s history. 137 state legislators representing all 50 states attended. This “dry run,” held in Williamsburg, Va., produced drafts of six different proposed amendments. One would effectively require a balanced budget by mandating a congressional supermajority in order to increase the national debt; one would establish congressional term limits; another would abolish the federal income tax and require a supermajority for other federal taxes; one would vastly curtail federal legislative and executive jurisdiction by reining in the commerce clause; one would allow three-fifths of the states to nullify a federal law; and one would allow congressional override of regulations.”

  15. Procopius says:

    I don’t understand what the Democrats are supposed to be risking if they fight this nomination. The next nominees the Republicans put up are going to be even more conservative than Gorsuch, whether the Democrats filibuster or not. As long as the Republicans have a majority in the Senate we are going to get a SCOTUS with a firm Republican conservative/reactionary majority. The filibuster is going to be ended as soon as it’s used against anything the Republicans want, so it might as well be thrown away in a worthy fight. The Republicans are going to confirm Gorsuch one way or another, so the Dems aren’t risking anything if they make a symbolic stand. If the Democrats vote in favor of Gorsuch, the next Republican is not going to be a moderate anyway.

  16. turcopolier says:

    Your point accepts the idea that there will be further retirements from SCOTUS before the 2018 election and also seems to accept the idea that the Democrats will not regain control of the senate in that election. I created a scenario by assuming that there would be further retirements and that the GOP will keep the senate. If the Dems accept Gorsuch and there are no more retirements and they recapture the senate then they will have avoided the existence of a solidly conservative SCOTUS for the foreseeable future. pl

  17. As a former Democratic voter, I’ve come to the conclusion that the party does such things to solve its core dilemma: the Democrats need to tell their constituents that they are liberal populists, while at the same time depending on $$$ from the power elite, who are anything put. The easiest way to accomplish this is to make symbolic brave stands where they have no hope of victory, such as here. The only downside to this strategy is that they occasionally end up in the majority, where they have no excuse to not deliver on their promises. This leads to circuses like the vote on the ACA, where they were in danger of having enough votes to pass the law that their voters wanted, but conveniently found an excuse at the last minute to turn a relatively promising law into a monstrosity written by and for the benefit of the health insurance companies.

  18. turcopolier says:

    ex-PFC Chuck
    What I fear in a constitutional convention is the possible dissolution of the Union as we have known it since the WBS. I sense that the great majority of Americans are incapable of envisioning something they have not experienced. Actually, this is a characteristic of all mankind. It is imagined that because the Union has been, it will always be. I think that this is not necessarily true. The first constitutional convention was sent to Philadelphia to write some amendments to the Articles of Confederation government scheme that was sensed to have not yielded enough power from the states to a central government for the republic. The convention did not do this. Instead it figuratively ripped up the Articles of Confederation and wrote a document creating a new form of government. It did this WITHOUT AUTHORIZATION from the states that has created the convention. And having written the present constitution, the convention did not refer this document for more than a cursory look to the Articles of Confederation government, nor to the existing legislatures of the states for approval. Rather than do that the convention itself called for a separate ratifying process based on separately elected state conventions. None of this had been authorized or delegated to the convention when it had been sent to Philadelphia to devise some amendments to the Articles of Confederation. In the end the state conventions ratified the present constitution, achieving the required percentage of state ratifications by the slimmest of margins. By the time New Hampshire ratified two states, North Carolina and Rhode Island had voted to decline to ratify. They then changed their minds rather than be left out. People think that a seizure of power by a second constitutional convention can be prevented by writing some rules, before THE PEOPLES’ REPRESENTATVES begin to meet. I think that is an amusing idea. pl

  19. Fred says:

    I’ll have to start taking Tyler’s call for guns and ammo seriously while the constitution still let’s me.

  20. kao_hsien_chih says:

    Agree with you entirely. The cat is already out of the bag, openly. One could say that the Democrats did it during the Obama years, but, the truth is that the legality of doing away with the supermajority requirement for cloture has been tacitly recognized for decades anyways. So no point in trying to keep up the fig leaf that “everyone knows” to be a lie.

  21. Fred says:

    While the Democrats are rejoicing in their defeat of Hitler that incompetent new politician Trump, the voters of the Republic are looking at the Establishment and wanting to know just why they, led by the Speaker of the House, had more than half a dozen years to have legislation ready to do what they said they would do: repeal Obamacare. Ryan is going to be the big loser in all this because it is obvious that he had no legislation ready nor has anything ready on infrastructure or tax reform. To quote that other reformer from our legal heritage: “You have sat too long for any good you have been doing lately… Depart, I say; and let us have done with you. In the name of God, go!”

  22. Jack says:

    I don’t know why or if the GOP will call a constitutional convention. What I am noting is that they are one state away from having that capability. The failure of the Democrats to hold states is creating this situation. I agree with Col. Lang and you that a convention would be very dangerous.
    IMO, the Republic is already destroyed. We already have a “soft totalitarianism” with mass surveillance, civil forfeiture, information operations and rule of law that does not apply to the politicsl, governmental and financial elite.

  23. Laura says:

    Fred – The GOP is full of hubris and certainty…they don’t understand the Republic nor do they have the subtlety to preserve it.

  24. linda says:

    That’s what Steve Ban on wants-uncontrollable. He said so

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