Next Monday, September 24, is The Last Monday Before The First Monday in October and therefore the day of the Long Conference.* The regrettably short-handed U.S. Supreme Court will consider a long list of petitions built up over the summer.
They will take up a handful of the cases for full briefing and argument in a short list announced next Thursday, September 27. They will schedule some for another look at a later conference. And they will turn down the vast majority in a long list released at the opening of the new term on Monday, October 1.
* Not to be confused with the Long Parliament, which was considerably longer, i.e., 1640-1660.
Surely it is no more regrettably short handed now than it was in 2016.
For some, it seems, which hands are missing is the key.
Yes, it was regrettable in 2016 as well.
Though the relevance of that escapes me.
Doug, are you saying that some think it is regrettable that the Court begins this term short-handed but did not think so in 2016?
If so, please identify the "some" and quote what they said that leads to that conclusion.
Well, Senators Grassley and McConnell acted to keep the Court short-handed for a year after Justice Scalia's death by refusing even to hold hearing, but after Justice Kennedy's retirement they have indicated an eagerness to have his spot filled ASAP. That leads me to think they did not think a short-handed court was less regrettable in Feb 2016 than now. (What I found especially regrettable was the failure to hold hearing and have a vote on the merits. But I was not surprised the politics prompted the decision not to even hold hearings.)
Of course, GOP Senators and others made the assertion that we ought to wait to fill the court until after an election scheduled nine months after Justice Scalia's death. That decision to wait was surely based on a view that who is on the court matters more than how many are on the court, at least in the short term. Notably, Democrats are now making the same kind of point in an effort to slow down the Kavanaugh confirmation process.
And does the relevance really escape you, Kent? I get the view that situations are different, and they are. But what is relevant is that the Court recently functioned as an eight-member court for a year and that who fills the ninth spot is more important to partisans on both sides of the aisle than the fact that a spot is open.
The original post made a politically neutral statement that it is regrettable that the Court is short-handed without assigning blame to anyone or taking a position on whether other considerations do or do not justify a delay in filling the seat.
An eight-member Court is unable to tackle important issues that are likely to divide it down the middle. I don't see how anyone can disagree that this is not an optimum situation. It might or might not be better than the alternative, but surely no one can say it is good.
Of course, Doug doesn't mention that the blocking of Garland was not in a vacuum.
Barack Obama, as Senator, tried to filibuster Bush 43 judges. Why then, as President, wasn't turnabout fair play? Second, the GOP merely followed the standard set forth by then-Senator Biden when considering the possibility of super lame duck nominations. Third, Democrats have escalated the judicial wars at every opportunity. What goes around comes around. The stiffing of judges started with Dems against Reagan--the Dems escalated the stiffing with Bush 41. The GOP stiffed Clinton (of course, recall that Clinton nominated some real bozos, e.g., Frederica Massiah-Jackson), but not as badly as the Dems stiffed Bush 41. The Dems ratcheted it up with Bush 43. The GOP then stiffed Obama, and the Dems did away with the filibuster.
When you accuse someone of not telling the whole story, it behooves you to do so.
federalist, I did not accuse anyone of "not telling the whole story." I said "For some, it seems, which hands are missing is the key" to whether being short-handed is considered "regrettable." I believe the facts you recite confirm my claim.
To that end, Kent, my point is that recent history suggests that GOP Senators preferred an eight-member court to one in which the ninth member was one appointed by Prez Obama, and now Dem Senators prefer an eight-member court to one in which the ninth member is one appointed by Prez Trump. I do not think it is controversial to conclude from recent history that the political sides now "regret" a seat filled by the other side more than they regret a seat unfilled.
It is regrettable that such partisanship is so dominating this universe. But I disagree that Dems would prefer filling the seat now rather than having a short-handed court "divide [issues] down the middle." The Dems fear the reversal of Roe and other precedents they hold dear, and so the Dems plainly do not now see a short-handed court as something to regret. Similarly, GOP Senators in 2016 obviously did not find a short-handed court sufficiently regrettable to even conduct hearings to consider the person nominated to fill out the court.
And so, I return to my claim: For some, it seems, which hands are missing is the key to whether being short-handed is considered regrettable.
"But I disagree that Dems would prefer filling the seat now rather than having a short-handed court 'divide [issues] down the middle.' "
You disagree with a statement nobody made, at least not in this thread. Okay.
Kent, you said "I don't see how anyone can disagree that this is not an optimum situation."
I am saying that Dems plainly see a short-handed court is an "optimum situation" until someone from their party is making judicial nominations (and Ward was suggesting that the GOP saw a short-handed court to be an "optimum situation" while Prez Obama was still in office through 2016).
I think the concern about getting the court “up to strength” is a phony one. It did
not matter to the GOP in 2016, that the delay in the Garland nomination left the court short-handed. There is no principled reason to consider such delay to be regrettable now.
It mattered, but they considered it better than the alternative. To a considerable extent the Court treaded water waiting for the seat to be filled.
Even the California Supreme Court, where a justice can sit by designation for an individual case, has a problem while Jerry takes his sweet time.
"Optimum" does not mean the lesser of two evils. It means the most favorable situation. In the "lesser of two evils" situation, neither of the available alternatives is the optimum.
It's hard to have an intelligent discussion if the words I use in their ordinary meaning are taken to mean something entirely different.
This thread has gone far afield of what I actually wrote in the OP, and I will close it now.