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Toobin writes: "President-elect Donald Trump will soon announce his nominee to replace Antonin Scalia on the Supreme Court. Once he does, we'll know within just a few hours whether there is any chance that the Senate will reject his choice."

Senator Edward Kennedy with other members of the Senate Judiciary Committee, including Joe Biden, in 1987, prior to voting against recommending the nomination of Judge Robert Bork for the Supreme Court. (photo: John Duricka/AP)
Senator Edward Kennedy with other members of the Senate Judiciary Committee, including Joe Biden, in 1987, prior to voting against recommending the nomination of Judge Robert Bork for the Supreme Court. (photo: John Duricka/AP)


How to Stop a Trump Supreme Court Nominee

By Jeffrey Toobin, The New Yorker

08 January 17

 

resident-elect Donald Trump will soon announce his nominee to replace Antonin Scalia on the Supreme Court. Once he does, we’ll know within just a few hours whether there is any chance that the Senate will reject his choice. That’s because the politics of Supreme Court appointments operates at the speed of the modern news media, not at the stately pace of the Justices’ deliberations.

Two examples—one recent, one practically ancient—prove the point. About an hour after the announcement of Scalia’s death, on February 13th of last year, Senator Mitch McConnell, the Republican Majority Leader, said that the seat would be held open for the next President to fill. Even though there were more than eleven months remaining in President Obama’s term, McConnell said the Senate would neither convene hearings nor allow a vote on anyone Obama nominated, no matter how well qualified. McConnell stuck to that plan, and Judge Merrick Garland, Obama’s admirable, otherwise uncontroversial choice, spent months in demeaning limbo as his chances for promotion withered.

On July 1, 1987, President Ronald Reagan nominated Robert Bork to the Court, and moments later Senator Edward Kennedy took to the Senate floor with a scathing denunciation of that choice. In perhaps the most notable floor speech Ted Kennedy gave during his long career in the Senate, he said, “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, school children could not be taught about evolution, writers and artists could be censored at the whim of the government.” Bork, unlike Garland, did get the chance to make his case at a confirmation hearing, but he never shed Kennedy’s portrayal of him as an extremist. The senator’s speech had mobilized a broad constituency against the nominee, and the Senate ultimately voted him down, by fifty-eight to forty-two.

Both McConnell’s decree and Kennedy’s speech were widely criticized at the time. McConnell was denounced for violating the Senate’s constitutional duty to review a President’s nomination to the Court; Kennedy was excoriated for distorting the record of a distinguished scholar and judge. McConnell and Kennedy, who were political opposites on the issues, responded to the charges in the same way: neither cared. They both recognized the importance of the Supreme Court to the issues that mattered most to them, and they believed that a few harsh words were a small price to pay for the chance to steer the Court in their preferred direction.

McConnell and Kennedy understood something else: speed matters, especially when it comes to Supreme Court nominations. Most Presidents’ choices for the Supreme Court are confirmed, usually without a great deal of controversy. Breaking that pattern requires a major political undertaking. Even back in 1987, Kennedy knew that the conventional wisdom in Washington congealed quickly. If Bork, a judge on the D.C. Circuit and a former Solicitor General and a professor at Yale Law School, was seen as a shoo-in, there would be little chance to build a case against him. Likewise, McConnell knew that he might well lose a debate about the qualifications of the person Obama named to the Court. (Indeed, Garland’s pedigree, which includes two decades on the D.C. Circuit, is impeccable.) So McConnell, with his precipitous vow of no confirmation of anyone, turned the debate away from the merits of any individual to a controversy about the responsibilities of the Senate during an election year. That kind of conversation was sufficiently abstract to avoid generating wide political interest, and, as it turned out, Garland’s nomination was largely forgotten during last year’s campaign.

There is, of course, an even bigger factor in determining whether any nominee is confirmed. When the President’s party controls the Senate (as is now the case), it’s extremely difficult to stop any nomination. The last Republican nominee to fail in a G.O.P. Senate was George W. Bush’s choice of Harriet Miers, in 2005; the last Democratic choice to go down in similar circumstances was Lyndon Johnson’s friend Abe Fortas, whom he nominated as Chief Justice, in 1968. Kennedy had a Democratic-controlled Senate during his crusade against Bork, and McConnell led a majority against Garland, too. But McConnell’s current advantage is modest—just fifty-two seats—and though he has likely allies in Democrats who serve in Republican-leaning states, no confirmation is assured at this point.

Still, Democrats will have to make a fast decision after Trump names his choice. (If they’re smart, they’re making up their minds about various candidates right now.) If they greet Trump’s nomination with politely stern vows of serious consideration and rigorous questioning at a hearing, confirmation will be nearly a certainty. If, instead, the senators break out the incendiary rhetoric of their late colleague from Massachusetts, then the new President may have a fight on his hands. In either case, we’ll know the outcome long before the confirmation votes are counted on the Senate floor.


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+34 # CDMR 2017-01-08 13:01
First of all, I think it should have been an impeachable neglect of duty when McConnell announced that the Senate would not consider any nomination Obama made. The Senate can vote a nomination down, but it really cannot refuse to act and just wait until the next president. McConnell should have been impeached for this.

Republicans in the Congress are anti-American. They simply cannot be counted on for anything. So I really don't have any optimism on supreme court nominations. Trump will be able to pack the court with his judges who will be paybacks for the support that the right wing gave to him in the campaign.

I think Democrats have simply lost this issue and it is not worth fight it. They will lose no matter what sort of fight they put up. Bork was a nominatin of unusual incompetence and disqualifying characteristics . He lost because of who he was, not because of Kennedy and other Democrats. It is not likely Trump will nominate someone as wierd and twisted as Bork.

I'd prefer to spend energy on helping Trump end the wasteful global war on terror and on improving relations with Russia. Trump has indicated he's interested in these. For me, the neo-con permanent war is the single issue. As long as the US is at war, nothing else can be attended to. War drains the economy so that there are no funds for anything else. I give up on the Supremes. Just end the GWOT and the criminal pivot to Asia.
 
 
+122 # revhen 2017-01-08 14:43
McConnell and the Republicans not only violated the US Constitution they violated their own oath of office. And they did it with impunity.
 
 
+29 # Vardoz 2017-01-08 17:21
https://www.youtube.com/shared?ci=IJ1U1KgenIQ
We cannot let Bernie fight our battles for us. This election was stolen- there is no doubt about is. Unconstitutiona l acts are being committed and the rule of law no longer exists. On so many levels our lives are being threatened and tens of thousands of people will die. Everyone needs to call their reps and let them know this election was stolen. There is plenty of evidence proving it and now the GOP and Democrats think they can destroy everything that is important to the American people with no consequences!
 
 
+14 # Tigre1 2017-01-08 21:01
Traitors, every one of them. Part of a very successful subversion campaign, calling itself a 'conservative revolution' and if Russi is an enemy, they match the Constitutional requirement for the description as traitors...'aid and comfort to the enemies'...next few years are going to be very interesting. Great time to be alive and alert...
 
 
0 # RLF 2017-01-09 07:26
The repubs. did something that had never been done before. Obama's response? Absolutely nothing. No creative solution. No unprecedented action, no boycotts of budgets...nothi ng nothing nothing! He just wanted to get out so he can collect his Goldman speaking bonuses! Dems won't do a damn thing here...in part because most of them are Republican Light!
 
 
+24 # Robbee 2017-01-08 15:57
Quoting CDMR:
First of all, I think it should have been an impeachable neglect of duty when McConnell announced that the Senate would not consider any nomination Obama made. The Senate can vote a nomination down, but it really cannot refuse to act and just wait until the next president. McConnell should have been impeached for this.

It is not likely Trump will nominate someone as wierd and twisted as Bork.

I'd prefer to spend energy on helping Trump end the wasteful global war on terror and on improving relations with Russia.

- 1) i stip mcconnell refused to do his express constitutional duty to hold a hearing and "advise" his - whether he likes or not - prez - & should therefor have been impeached - but that could never happen in our repug house of repugs - or convicted - as that could never happen in our repug senate

2) it is highly likely Trump will nominate someone as wierd and twisted as scalia - fact is he's considering 20 scalia clones he's named!

3) rump has never shown any interest in ending the wasteful global war on terror - fact is he plans to win it! by "destroy"ing isis!

4) rump's key prospective ally in winning "trump's war" on extremist islam jihad - "radical muslim terrorists" is russia, which has long focused its foreign and domestic policy on repressing revolutionaries in chechenya, kazakstan, and all other central european - former soviet stans - and as rump hopes - due to russian ally assad - isis
 
 
-7 # crispy 2017-01-08 19:01
you are so right and CMDR is out of touch.
Let's impeach Von Trumputin as soon as possible (2018 if democrats can figure out what they did wrong...
SO FAR THEY CAN'T! as shown herehttp://www. counterpunch.or g/2017/01/06/al gorithm-and-blu es-why-hillarys -moneyball-stra tegy-failed/
 
 
0 # RLF 2017-01-09 07:30
Get rid of Trump and another stupid dick steps up, and so on. We can only resist and it was the repubes that first said about Hillary...that they wouldn't let her put anyone on the court her whole term...sounds like a plan to me but the Dems won't be able. Too many of them are Republicans.
 
 
+24 # crispy 2017-01-08 16:54
CMDR you are RIGHT on this:
"First of all, I think it should have been an impeachable neglect of duty when McConnell announced that the Senate would not consider any nomination Obama made. The Senate can vote a nomination down, but it really cannot refuse to act and just wait until the next president. McConnell should have been impeached for this. "
AND Absolutely WRONG on giving up thye fight. I have read somewhere else thata nomination can be held up for as many as 2 years LET'S DO THAT!
 
 
+23 # crispy 2017-01-08 16:57
CDMR DID YOU EVER PAY ATTENTION TO WHAT TRUMP SAID DURING THE DEBATES?
you say "I'd prefer to spend energy on helping Trump end the wasteful global war on terror"
Trump wants TO INCREASE THE WAR ON TERROR AND BOMB+ TORTURE FAMILIES OF Presumed TERRORISTS!
 
 
+2 # ronnewmexico 2017-01-08 19:07
Quoting CDMR:


Republicans in the Congress are anti-American. They simply cannot be counted on for anything. So I really don't have any optimism on supreme court nominations. Trump will be able to pack the court with his judges who will be paybacks for the support that the right wing gave to him in the campaign.

I think Democrats have simply lost this issue and it is not worth fight it. They will lose no matter what sort of fight they put up. Bork was a nominatin of unusual incompetence and disqualifying characteristics. He lost because of who he was, not because of Kennedy and other Democrats. It is not likely Trump will nominate someone as wierd and twisted as Bork.

I'd prefer to spend energy on helping Trump end the wasteful global war on terror and on improving relations with Russia. Trump has indicated he's interested in these. For me, the neo-con permanent war is the single issue. As long as the US is at war, nothing else can be attended to. War drains the economy so that there are no funds for anything else. I give up on the Supremes. Just end the GWOT and the criminal pivot to Asia.



Agree not a snowballs chance in hell. When things do turn back progressive the court can be brought back into line. FDR had that problem. Just the hint of stuffing the courand they rolled over.
It never had to come to a vote they gave in about immediately.
If we ever get a real progressive that is.
 
 
+8 # Cassandra2012 2017-01-08 19:12
WHERE are the lawyers to give McConnell what=for???
 
 
+75 # DongiC 2017-01-08 13:55
The overriding issue of the day in my view is global warming. This involves every nation on the planet. That's why nearly 200 nations met in 2015 in Paris to sign agreements dealing with climate change.

If the Supreme denies global warming or is just lukewarm about fighting for the environment, then reject him at once as a danger to all of us including unborn generations. We don't need anymore deniers on the Trump team.
 
 
+11 # crispy 2017-01-08 19:03
CIVIL RIGHTS inluding RIGHT TO ABORTION IS #2 then...
 
 
+27 # goodsensecynic 2017-01-08 15:30
Yes, "DongiC," the rapidly degrading natural environment - including overpopulation, climate change, etc. - is the great "existential" question of our day.

Coming quickly behind, however, are: the state of perpetual war; the growing gap between rich and poor - domestically and globally; human/civil rights and the rise of the national security/survei llance state; etc., etc., etc.

I do have a warning for "CDMR," however. For the time being, specific questions about ecology and other issues may or may not be brought before the SCOTUS; but it is not wise simply to assume defeat and look for battles elsewhere. As long as Trump controls the White House, the Congress and the Supreme Court, NOTHING good will be forthcoming - all that is left is to "witness" and "harass" in the hope that some members of the House and the Senate will fret some about their own reelection chances and will grow a spine and a conscience sooner rather than later.

Who knows? Maybe the swing vote on the SCOTUS will see more clearly what's coming down the pike, and act accordingly.

Above all, however, this is the time to be loud and proud ... to demonstrate (so to speak) that the Trump aberration must be a "one-off." That also means organizing Bernie-style with a Bernie-style message for 2018 ... and hoping that Herr Drumpf does not do irreversible and irredeemable damage to your republic and to those of us who reside on other parts of the planet.
 
 
+4 # crispy 2017-01-08 19:05
and remember Congress can decide how many judges sit on the court. IF they increase it to 10 or eleven (more likely the latter) Von Trumputin could have 3 choices!!
 
 
+42 # Inspired Citizen 2017-01-08 15:40
Trump's judges need to be filibustered and delayed as long as possible. If the Democratic Senators play ball with Trump, then they may as well be replaced by Republicans.

#ObstructOrBust
 
 
+11 # crispy 2017-01-08 19:06
I AGREE and obstruct for 2 years is possible; so I heard. Is it?
 
 
+11 # Jayceecool 2017-01-08 17:31
Whoever expects spineless Democrats to put up a fight is a fool...
 
 
+10 # anthraxripple 2017-01-08 18:13
If Democrats wanted to do something, they'd do it. We'll see if they actually care to put up a fight against Trump.
 
 
+1 # Tigre1 2017-01-08 21:08
Try to remember what happened to Harry Reid after he'd talked smack about the Kochs for a week or two...he had an 'accident', didn't he? Lots of people can work for a billionaire. Wake up, you didn't have a clue how this game is played anymore, did you? This more than
Breaking Bad', and you are part of the struggle...you' re either a conscious actor, or part of the prize. History didn't end when Machiavelli died.
 
 
+3 # anthraxripple 2017-01-08 22:25
I long ago, gave up trying to discern which Democrats were being cowardly, and which were being duplicitous.

The end result is the same.

If they're too cowardly to do their job, they don't deserve it or any of my respect any more than they would if they were more easily proven to be part of the evil they pretend to be defending us against.
 
 
0 # crispy 2017-01-09 01:33
I AGREE and obstruct for 2 years is possible; so I heard. Is it?
 
 
0 # crispy 2017-01-09 01:33
harry Reid had an accident? When?
 
 
+7 # ronnewmexico 2017-01-08 18:31
Obama coulsd have forced a appointment. I guess he was so certain in Hilliary's win it was not necessary.
How? He could continue to call the senate into special session until they heard his appointment. George Wash did this back in the day for other reason, so it would find constitutional support.

He actually suponeaned the memebers to attend. Violate a suponea and you face jail. That in small part is what fed marshalls are for.
So they would have had to attend. And know what…if he did it continually day after day they could not have worked on their reelection campaigns.

So they would have caved, absolutely.

So sad.
Knoqwing this it all becomes a bit of a show or joke. Like the 60 vote filibuster rule, chfangeable at the initiation of any senate session. Never changed however.







.
 
 
0 # crispy 2017-01-09 01:36
yeap ronnewmexico (my state) the democrats never tried... Will they this time? not according to counterpunch...
http://www.counterpunch.org/
 
 
0 # RLF 2017-01-09 07:35
Repubes won't change the filibuster rules because it saved their bacon during early Obama. The dems are cowards because of all the philibuster threats, the only one to have to actually stand and talk was Bernie Sanders...as I remember (I have a terrible memory!).
 
 
+5 # pstamler 2017-01-08 18:33
Attention CMDR:

You can't impeach a senator, even one as miserable as McConnell. Impeachment, per the constitution, is only for members of the executive and judicial branches.

Peace,
Paul
 
 
+6 # KenD52 2017-01-08 20:11
Read the Constitution! The House and the Senate are responsible for their own members. The Senate as a whole would have to expel McConnell.
 
 
+6 # SOF 2017-01-08 20:24
I think we should go for issues that are hard to argue against. Maybe even agreement, Like Elections - we want hand-counted votes -so create a lot of jobs for people on voting day! The debacle of this election is punctuated by voter suppression, but also that fraud was brought up by rump, then fought and bungled with Stein's effort to recount -and the fact that HRC did not support Stein. Coming on the tail of an unpopular election result and the Ethics Committee flap, why would we trust the results when it is SO EASY to HACK the VOTE????
Speaking of ethics, we should go for the amendment to end 'Citizens United'. Who can really defend the power of money in elections and making laws? - besides those who will have to publicly defend it... And then insist on a prolonged public debate on Climate change pro and con, while pointing out the air alerts in China, Paris and and wherever else. Certainly even pea brains can understand smelly smog is not a good thing to breathe.
 
 
+2 # ronnewmexico 2017-01-08 20:39
SOF the latest PEW pole had roughly one third of Americans considering global warming a great concern. Roughly another third think it is a concern which may negatively impact them and another third considers it no concern at all.

So roughly two thirds consider it sort of to very important. In all the hours of debate this subject received one question and about thrity seconds of answering.

MSM and the established parties will have no part of debates on this type issue even thoiugh most americans are very concerned with them.
 
 
+1 # SOF 2017-01-09 00:43
Yes, thanks. Still, we should Seize the Day! It seems a good time, part of the buzz about change. The CMSM has failed to educate the populace. While the peeps are still thinking and involved... while elections and $ in politics is on the national mind... Before the normalcy numbs us down... Maybe if the important and constitutional issues aren't buried, if the motivated talk, educate each other, debate, seek counsel and choose a direction, we will all learn something and be better off. Many issue.-seek common ground to start. PBS, NPR? Webinars?
 
 
0 # fortbuffy 2017-01-09 08:56
If Trump nominates Ted Cruz, the end is near. Do Supremes need to be born in the United States? Cruz is more evil than Pence. Impeachment of Trump, probably impossible would not solve any problems. Thanks for quoting that great Ted Kennedy speech. His definition of the GOP agenda from 20 years ago is not far off from todays.
 

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