35 thoughts on “In A Republic”

  2. refusing to consider a Supreme Court nominee from a lame-duck president,

    A lame-duck is an official whose successor has been chosen; Obama is not a lame-duck. Furthermore, nothing about the argument in this piece hinges on how long the president has been in office. It applies just as well to one who was just sworn in.

    The Framers’ intent was not to ensure that appointees were appointed on any particular time schedule, or even necessarily at all.

    Or even necessarily at all? The Constitution and Federalist papers assume throughout that appointed positions will in fact be filled. What evidence is there that the framers contemplated, much less encouraged, a situation in which appointed positions were kept vacant indefinitely?

    I think the conclusion of the article is correct: all branches are judged and disciplined by the people. Which is why it’s completely legitimate for Democrats to argue that the Senate is not doing its job, and that refusing to hold hearings or vote on a SCOTUS nominee is a completely unprecedented political move. Such arguments aren’t briefs for a constitutional law seminar, they are appeals to the voters who will make their will known at the polls. They are the same sort of arguments Republicans were making just a few years ago.

    I am doubtful they will make much difference, because I don’t think this sort of process issue is likely to sway many voters. On the other hand, if a Democratic pick takes Scalia’s seat, the court will undergo a sharp turn to the left. Any Republican Senator who votes for that will be vulnerable to a primary challenge, and/or will lose support from the GOP base. Which is one reason to doubt that they’ll confirm Garland in the lame duck session if Clinton wins and Dems retake the Senate; they might think it’s better (for their re-election chances, at least) to have a 45 year old liberal justice appointed by Clinton and confirmed by Democratic Senators than to have Garland confirmed by their votes.

    1. “What evidence is there that the framers contemplated, much less encouraged, a situation in which appointed positions were kept vacant indefinitely?”

      I’d rather hear what Rand thinks, but for whatever it is worth, I didn’t read Rand as saying they contemplated it or encouraged it. I read Rand as saying that whether the positions were vacant or not was orthogonal to the framer’s intent.

      2. Yes, the framers intended that a President would have to work with the Senate to get a nominee appealing to both. Why is Obama chronically unable to work with other people? It looks like he is getting some blowback from how he treats other human beings, getting a taste of his own medicine.

        This is just another example of how Obama never really had any intentions of working with other Americans. Compromise and diplomacy are just buzzwords that calm the violent activist mob and distract them from the failures of their party leadership.

    2. A lame-duck is an official whose successor has been chosen; Obama is not a lame-duck.

      The last year is often considered a lame duck year. You’re quibbling over a silly term.

      Which is why it’s completely legitimate for Democrats to argue that the Senate is not doing its job, and that refusing to hold hearings or vote on a SCOTUS nominee is a completely unprecedented political move.

      And the republicans have taken this tactic because of the unprecedented usurpation of power by Valerie Jarrett Obama. “I’ve got a pen and a phone!”

      1. completely unprecedented

        Seems to be quite a bit of precedence, most of it from Biden’s own mouth. Jim, are there any words you do understand the meaning of?

        1. There is no precedent for a blanket refusal to vote on or hold hearings for a SCOTUS nominee, regardless of the nominee’s views or qualifications. People have talked about hypothetically doing similar things, but no one had ever actually done it until now. That’s what makes it unprecedented.

          1. Maybe republicans are still angry about Bork. That was unprecedented, too. I guess you weren’t so angry about it because it was your side.

          2. Not only is there precedent, it even has a name. If you don’t like the rules, you should have made them. That’s a concept that includes other things, such as this or for that matter this too.

          3. Biden said the Senate “seriously consider” not holding hearings for a hypothetical extremist nominee in the last six months of Bush’s term. Of course he never actually did any such thing. He never even got to “seriously consider” doing so, since no such nomination took place.

            The Senate GOP isn’t just talking about “seriously considering” not holding hearings, it’s actually refusing to hold hearings. It isn’t doing so because the general election is underway; it isn’t. It isn’t doing so because Garland is an extremist; they chose this course of action before he was named. What it’s doing hasn’t been done before: it’s unprecedented.

            Citing Biden’s comment is like arguing that Neil Armstrong’s footprint wasn’t unprecedented because Jules Verne had already imagined it.

          4. He never even got to “seriously consider” doing so, since no such nomination took place.

            Obama and Biden have made lots of rules they didn’t get to act on. For instance, there was the rule that the individual mandate start at a certain time, but that rule didn’t happen until later. It was still a rule made by Obama and Biden.

  3. Rand, I really enjoyed your article, and I sent it to a number of friends. The bit about hypocrisy at the beginning detracted slightly because I think it might turn-off the Democrats who probably stand to benefit the most from reading your article. I wonder if you’d be interested in re-writing it very slightly, replacing the bit about hypocrisy with a hook specifically written to lure in Democrats who fancy themselves able to think new thoughts, and then publish the rewritten piece in the Huffington Post. Or maybe rewrite the intro in a completely non-partisan way and then see if you get it in an op-ed piece for a newspaper. Or on Politico. Or somewhere mainstream. What I’m trying to say is that I think it was a good piece that deserves a larger and more politically diverse readership than Ricochet’s.

    1. Maybe the dig about the press being democrats was the bigger turn-off. Anyway, once the first paragraph was over, the rest was great.

  4. A lame-duck is an official whose successor has been chosen

    LOL, you don’t get to chose your definition and demand everyone else accept it. Lame duck originated as a British term and meant someone weak or no longer capable. Even Merriam-Webster carries this definition: “an elected official whose time in an office or position will soon end” or ” a person, company, etc., that is weak or unsuccessful and needs help”. Really the alternate is more applicable to Obama, and for you too Jim. Perhaps Bilwick should consider instead of calling you Baghdad Jim, using Lame Duck Jim.

    What evidence is there that the framers contemplated

    They wrote into the Constitution the right of the Senate to advise and consent. All your other qualifiers subsequent to the quoted statement is as superfluous as it is vague. If the framers intended a finite time for appointment, then what is that finite time? When did they ever discuss a finite time? Did they encourage a finite time?

    1. Correct, Leland.

      A lame-duck congressional session exists after the November election until the new Congress is seated. With a 87% re-election rate, only 13% are truly lame ducks.

      Obama was a lame duck after November 2012.

    2. Even Merriam-Webster carries this definition: “an elected official whose time in an office or position will soon end”

      Listing it after “an elected official or group continuing to hold political office during the period between the election and the inauguration of a successor”.

      The framers did not put time limits on the Senate’s advice and consent. But if they had wanted to allow indefinite blockades on presidential appointments, or been terrified at the prospect of unilateral executive action, they would not have provided for recess appointments.

      1. They provided for recess appointments for emergencies, when it was much more difficult for senators to get back to Washington on horseback. It truly is an archaic provision.

        1. If recess appointments are for emergencies, the framers must have thought that leaving positions unfilled for the length of time it might take a Senator to reach the capital could constitute such an emergency. So much so that it is worth temporarily dispensing with Senatorial advice and consent altogether rather than let the position remain vacant. That sits at odds with the notion that it would be reasonable to leave SCOTUS seats empty for as long as it might take to elect a president and Senate from the same party.

          1. If recess appointments are for emergencies, the framers must have thought that leaving positions unfilled for the length of time it might take a Senator to reach the capital could constitute such an emergency.

            Yes, they thought that it could. That doesn’t mean that they thought replacing a Supreme Court Justice would constitute an emergency, and there is no reason to think so.

      2. The framers did not put time limits on the Senate’s advice and consent.

        Hurrah for the broken clock!

  5. Rather, they wanted to ensure that it not be done unilaterally by a single branch. With the system of checks and balances, they were all about limiting government powers, and they made appointments, as with much else, difficult, particularly for lifetime appointments.

    This is the important part. Obama and the Democrats want to act unilaterally. For all of their talk of diplomacy and compromise, they don’t actually do either. This is especially true in their treatment of the loyal opposition. They wont call Islamic terrorists, Islamic terrorists but they have no problem saying non-Democrats are worse than ISIS or are the American Taliban.

    It’s like this on every issue and we see it with every Democrat protest. They feel they are entitled to act like the biggest d**ks imaginable and when that doesn’t make people want to give in to their every demand, want to act unilaterally.

    Acting unilaterally usually comes with them going outside of the law and cases where their actions are legal, they are highly unethical. Take for instance the persecution of the Tea Party and other non-Democrat groups. The Obama administration has spent years slow walking court cases, destroying evidence, and lying about everything.

    The same thing happens at the EPA, the State Department, the VA, and every other agency controlled by Obama and the Democrats.

    It is rather fitting that process is now being used against the Obama administration. But there is a way out. Obama, the greatest diplomat to ever walk the Earth, could recognize that Republicans get to approve or disapprove any candidate he puts forward. If he wants to get his choice through, he has to pick someone that appeals to the GOP controlled Senate.

    Maybe it is too late. Obama has spent his term burning bridges rather than building them. I have been saying this for years, Obama would have been better off exercising soft power at home and hard power abroad. He chose to do the opposite. It is no surprise that people are treating Obama as he treats others.

    1. Obama has spent his term burning bridges rather than building them

      Obama’s Gallup approval rating is 53%. He has no trouble building bridges with most people.

      For comparison, Bush’s approval rating at this point in his second term was 28%.

      1. Obama’s approval rating is only that high because Democrats think he can do no wrong. It puts them in the position of defending a man who is the polar opposite of everything they publicly claim to care about. Its been stunning seeing the mask fall from the Democrat party. They even have a NAZI breaking all kinds of election records.

        We both know that a poll done with questions like “Do you support printing money and giving it to banks for free?”, ” Do you support the use of government agencies to attack political opponents?”, or “Do you support sex slavery and genocide?” without the inclusion of Obama’s name, the poll results would be much different. But if you attach Obama’s name, suddenly those things are totes cool to Democrats.

      2. Oh, you might want to look at the approval numbers of the people Obama should have been building rather than burning bridges, they are in the dumpster.

      3. Obama’s Gallup approval rating is 53%. He has no trouble building bridges with most people.

        Except for congress and allies. Otherwise, sure.

  6. Weeks ago I built a spreadsheet of every nomination to the Court.

    *goes and digs it up*

    As an aside, it has a bear of a formula for calculating election day.

    Anyway, I divided each Presidential term into 3 month periods, numbering them 1 through 12.

    The number of confirmations in each of these 3 month periods is:
    1) 12
    2) 10
    3) 14
    4) 17
    5) 11
    6) 6
    7) 19
    8) 3
    9) 3
    10) 17
    11) 2
    12) 2

    Notice that very few justices were confirmed in the last 6 months prior to the election, and in at least two of those cases the nominee was from the opposite party as the President and considered a slam dunk.

      1. The three months before election day. I did that because incumbents who had been holding off on a nomination often go ahead with it once they’re re-elected but before they’re sworn in for a second term.

        There are surely some retirement decisions affecting the data because deaths would be random yet the nominations and confirmations are definitely not, showing almost a 10-fold difference between the minimum bin (2) and the maximum bin (19).

        I took the data from the wiki list. They also have a list of nominations that was also interesting.

        1. So we are now in period 10, according to your statistics one of the most historically common periods for confirmations with 17.

          1. Maybe Obama and the Democrats shouldn’t have danced on Scalia’s grave the hour his death was announced? If we are talking about propriety of the process, that needs to be mentioned.

            Democrats want respect, they are very machismo and patriarchal, but they never show respect to others. Well, except for the Iranians, Hamas, Taliban, Maduro, and Castro. Fellow Americans, not so much. They’d rather treat them as subhumans.

          2. Along with Wodun’s comments, perhaps Biden should not have announced the rule. Further, should we talk why the “Nuclear Option” might have been used by Republicans during Bush’s Presidency, when federal court appointees were never reviewed and given an up/down vote. This was followed by Reid going full nuclear to push through all of Obama’s appointees. There is so much precedents for what the Republicans are doing, it really is an easy call.

  7. The first week in May is 6 months from the November election. It is essentially April 1. The Senate needs to investigate the nominee and hold hearings and vote to meet your criteria. Yah, right.

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