You actually said that the other seat was stolen too.
I thought, and still think, that there is a strong case that the 2016 seat should have gone to a Democratic appointment. At most, the Senate's confirmation power should be used as leverage to force a more moderate appointment. But I was able to see the other side of that argument.
But that is different now. Trump should get to fill one seat or the other, but not both. The combination of what happened in 2016 and what is about to happen in 2020 is outright theft of a seat. And no, I'm not persuaded by your resort to definitions of "theft" in the literal context of taking away another person's property.
The GOP had some good luck, and they're exploiting it. They had control of the Senate at advantageous times (mainly because the Democrats decided they didn't give a crap about anybody who doesn't live a big coastal city), RBG decided to hang on until she died, and the Democrats chose its worst nominee in 200 years in 2016. Is it hypocritical? Yep. Is it theft? No.
Many of your points, including this one, address questions about what one side or the other can get away with. That argument doesn't address the much more relevant questions -- what is fair and best for the American experiment. Plus, this argument does not distinguish the current Republican shenanigans from the possibility of Court packing by the Democrats. The fact that they might be able to get away with it would not make it right.
It also isn't particularly outrageous. If you look at the history of election year vacancies, they're not doing anything out of the ordinary.
On this, we will have to disagree. The vast majority of appointments to the Supreme Court have been filled by the sitting president. That is true regardless of who controlled the Senate. Control of the Senate creates leverage to do the wrong thing, and across history the Senate has done the wrong thing on occasion. I believe n=1 on that, but it might be 2. Regardless, that doesn't make it right.
Do you honestly believe that if the roles were reversed that Democrats wouldn't do the same thing? Of course they would.
On this we can agree. In fact, this is fundamental to my point. Both sides are firmly in the wrong, and they keep trying to one-up each other on how outrageous they can be. The Barrett confirmation hearing is a huge escalation, but I have no doubt the Democrats would've done the same thing if the shoes were reversed.
They won't overturn Obergefell. They might overturn Roe, and if they do, leftist activists will freak out, but the freakout will dissipate. Why? Because that would only mean that the issue would go to the states where it belongs. Feminist women in New Jersey will still be able to get abortions. They just won't get to dictate what happens in other states, which isn't their business.
As for overturning the ACA, I'm totally apathetic. If that costs Republicans, I couldn't care less. They picked that fight and pretended to have an alternative to the ACA when they didn't. If they get burned, so be it. Besides, the job of a judge is to apply the law as it's written, not to be concerned with political outcomes.
I pretty much agree with you on all of this -- except the idea that the freakout will dissipate and feminist women in New Jersey will let this go if Roe gets overturned. Not a chance.
It was designed to put a check on presidential power in selecting judges, and nobody is entitled to confirmation. It is a veto power, as they used it on Bork.
The Democrats vetoed Bork and forced Reagan to nominate another Republican. That's exactly how the system was designed, and is fundamentally different from vetoing any and all Reagan appointments and stealing the seat.
To be co-equal, the Senate would have to somehow be able to substitute their own pick for the President's.
The power to nominate is meaningful only if the Senate gives some level of deference to the nomination. Without that deference, the Senate is co-equal on a practical level.
You aren't sanctimonious, but that talking point is. If Democrats don't pack the Court, that wouldn't make them bigger. It would make them non-arsonists of the federal court system. It's like calling someone generous for not robbing a convenience store.
You are understating the wrongness of the Republican's conduct, and overstating the impact of Court-packing. We'll probably never agree on either point, and I've already discussed the first point so I'll move on.
With respect to Court packing -- there were several changes to the Court's size in the first 80 years or so, but none of those seemed to be about packing the Court because control didn't shift. But that changed in the 1870s, when the Supreme Court was expanded from 7 to 9 to dilute Southern influence. The most direct impact was on the validity of paper money, which swapped more or less overnight from being unconstitutional (4-3) to being constitutional (5-4). More broadly, the newly expanded Court became much more open to an expanded role for the Federal government. Of course, it's hard to assess this as a precedent because it happened in the shadow of the Civil War.
The second attempt at Court packing was the better-known Roosevelt plan to increase the Court from 9 to 15. That plan faced considerable opposition -- for good reason -- but it was headed towards a close vote. But then, two Justices changed their position, in what is known as "the switch in time that saved nine", and started upholding New Deal legislation. This made Court packing unnecessary, and the Senate voted it down.
Both prior Court-packing plans were put forth out of the blue, in a blatant attempt to change the Supreme Court's direction. I also feel that packing the Court would be unwise in the current situation, but the case will be murkier if Barrett is confirmed. That act will severely hurt the Court's credibility and threatens to undermine America's democratic institutions. Court packing is just the next logical step in the spiraling destruction of our judiciary. Other than packing the Court, the Democrats' only other option is to tip their caps at the Republicans and congratulate them on their success in stealing a Supreme Court seat. And yes, I think that would make them the "better person" in this contest. Of course, "better" doesn't have to mean good -- just less bad.
My hope is that we have a reckoning on the role of the Court. Nominations aren't supposed to be this high stakes. They became so, because the Court decided it wanted to be the final arbiter of the biggest social and cultural issues in the country regardless of what the law actually says. It was never meant to be that, and the founding fathers would be horrified at it. Undo that, and nominations will be much, much simpler and nicer.
This seems to be the core of the issue. To summarize:
- The right supported blocking Garland and now supports confirming Barrett because they like Barrett's judicial philosophy and dislike Garland's.
- The left supported confirming Garland and now supports blocking Barrett because they like Garland's judicial philosophy and dislike Barrett's.
This hyper-partisanship enables conservatives to employ tactics that are Constitutionally sound but threaten political stability, and tempts liberals to consider tactics that are equally Constitutional but even more destructive.
And with that said, I'm probably done with this topic. We have both said all we really can, and I don't plan to keep checking back through this thread to figure out if anything new was said. Of course, I might... lol.
