The Garland choice is certain to the the talk of the legal blogosphere today. Kent, and now I, will join right in.
Should the Republicans formally consider this nomination?
To me, there are only two relevant issues.
1. Would Garland move the Court to the Left from what it was with Scalia, a direction opposite from what the country wants?
Yes he would. We don't need hearings to know that.
2. Would acting on Garland now effectively extinguish the citizens' chance to have a say at the election in eight months about the direction of the law?
Yes it would. We don't need anything but the calendar to know that.
The question is not directly how the nominee is "treated;" it's whether the Republicans fall for the trick of building incremental momentum, which is what the demand for a hearing is actually about. Obama does not just want a "fair hearing." He wants to build the crescendo for an "up-or-down vote" (the same up--or-down vote he opposed for Sam Alito)
I'm perfectly fine if Sen. McConnell invites Judge Garland into his office for a cordial meeting, and explains that he seems to be a fine man with years of creditable service; and in different times and different circumstances a hearing would be in order; but, because of (1) and (2), that time is not now.
As to the game theory question posed in Kent's
entry, my take is informed by something I've had to learn over and over again: There are no facts about the future, and your own present perceptions can be proven wrong overnight (as mine were last night by today's Garland nomination).
We do not know who will be elected President. We don't know who'll control the Senate. We don't know how awkward it would be for Ms. Clinton to disavow Judge Garland, or even whether she might, for political purposes, pledge to re-nominate him should she win (and not get indicted, which we also don't know). If she makes that pledge, we don't know if she'll keep it.
We don't know Trump's chances of winning. We do know that not a single prognosticator saw him coming with the strength and staying power he's shown. We do know that he has named two people he would regard as good appointments, Judge Diane Sykes and Judge Bill Pryor. That is one of a very few areas where I agree with him. But I don't trust him in that respect any more than I trust Ms. Clinton. Anyone who claims to know what Trump would do is, to be blunt, nuts.
We do know that Ted Cruz is by far the most likely of the three to appoint a Justice who reveres and follows the Constitution as Justice Scalia did.
We also know that the electorate's anger, volatility and anti-establishment mood is at a peak this year.
So what to do, given all these knowns and unknowns? My answer -- admittedly a cliche' -- is to do the best you can in the moment.
Sen. McConnell has staked out a position of principle: The electorate, angry or not, should have a say in the direction of the law under which it will live; therefore no pre-election choice for the Court will be acted upon. I believe that was and remains the correct choice.
P.S. Let me repeat Kent's note at the end of his entry: "The comments are open, for now. The author of a post has the option to close them on this blog if the thread degenerates, and frankly we might start using that option more often."
Probably no surprise, but different polls say different things about what the country wants. For example:
http://www.pollingreport.com/court.htm
37% want to keep the Supreme Court as it was
32% want it more liberal
29% want it more conservative
Also, 63% think the Senate should hold hearings and vote.
So making the blanket statement that making the court more liberal is "opposite from what the country wants" is not neecssarily accurate.
- Victor
Victor --
-- Do you think the country should have a say in the direction of the law it will be living under? More broadly, do you think it's healthy or unhealthy for the candidates to put before the people their competing visions of what the Supreme Court should do (and not do)?
-- The poll you cite shows the "want-more-liberal" vs. "want-more-conservative" difference to be within the margin of error. The poll I cited (Gallup)shows the "want-more-conservative" side wins 37% to 20%, way outside the margin of error.
I therefore continue to believe that the country wants a more conservative, as opposed to a more liberal, Court. That is certainly what you'd get if you average the two polls.
http://www.gallup.com/poll/185528/trust-judicial-branch-sinks-new-low.aspx
Bill -
- Sure, the country should have a say. They had a say when they elected the current President, who is still serving. Now, if you want to argue that we should wait for the next election, that raises all kinds of questions. When does the will of the country expire? Does it happen as soon as the President's party loses control of the Congress? Why isn't that in the Constitution? Does Congress lose the ability to pass laws within one year of an election, so we can wait and see if the people want a change? Should a current President lose the ability to make any appointments (or, for that matter, sign any laws) after his or her party loses control of Congress? Or always during an election year?
- Absolutely right about the margin of error; however, if you combine "stay the same" and "more liberal," it comes out to a healthy 69-29 against more conservative, handily beating the Gallup poll you cite.
My bigger point is that you can conjure a poll to say anything you want, and saying that it represents some unassailable "will of the people" is questionable.
37% of Americans believe houses can be haunted, the same percentage as in the Gallup poll wanting a more conservative court. Do youthink that proves that haunted houses are real?
http://www.gallup.com/poll/19558/paranormal-beliefs-come-supernaturally-some.aspx
- V
Victor stated: "Probably no surprise, but different polls say different things about what the country wants. For example:
http://www.pollingreport.com/court.htm
37% want to keep the Supreme Court as it was
32% want it more liberal
29% want it more conservative"
So making the blanket statement that making the court more liberal is "opposite from what the country wants" is not neecssarily accurate."
How so?
37% say they want it "as it was." That means, as conservative as it was with a Scalia as the ninth justice.
29% want it MORE conservative than it was with Scalia.
In other words, 63% want something that Obama will never give them, a court as conservative as it was with Scalia or even more conservative.
That is a breathtakingly clear message that making the court more liberal is "the opposite of what the country wants."
Excuse my math. lol 66% "want something that Obama will never give them, a court as conservative as it was with Scalia or even more conservative."
Bill has repeatedly cited a poll showing that the country wants a "more conservative" court. Since the poll was conducted while Scalia was on the court, presumably that court was not conservative enough, meaning that "stays the same" was not good enough.
My bigger point is that relying on polls to determine what kind of Supreme Court we should have strikes me as foolhardy, especially since different polls can produce different results on the same question.
- V
"My bigger point is that relying on polls to determine what kind of Supreme Court we should have strikes me as foolhardy, especially since different polls can produce different results on the same question."
Then why did you cite one in both your first and second responses?
And do you have a better way, other than polling, to determine the national mood on this question?
-- "Sure, the country should have a say. They had a say when they elected the current President, who is still serving."
They had a more recent say when they elected an opposition Senate which is still serving.
-- "Should a current President lose the ability to make any appointments (or, for that matter, sign any laws) after his or her party loses control of Congress?"
No, he should not. But he should lose, and has lost (after a congressional campaign in which he was heavily involved), the ability to impose his own terms on actions for which the Constitution requires the Senate's advice and consent.
If the terms are Merrick Garland, the answer, with all respect to the Judge, is no.
-- Whether haunting is real is a matter of fact. The mood of the country is, by definition, a matter of opinion. That's why they're called "opinion polls."
Bill -
Just to wrap ths up, I (obviously, I mistakenly thought) cited polls to show that polls can produce varied results on the same question, making them, to some extent, inherently unreliable. See the Democratic primary results in Michigan for more evidence of this.
And of course polling is the only way we have to determine the "national mood" on any question (other than elections themselves). I'm just saying that a matter as important as the selection of a Supreme Court justice probably shouldn't be determined by the "national mood."
- V