Supreme Court's big day

[Seriati]

So two hours ago, the biggest news was the Janus decision, whereby the Supreme Court overruled Aboud and 40 years of precedent to declare that public sector unions can not charge fair use fees (or any fees) to non-members without their affirmative consent.  It's been a busy week for the court.

Now of course even that decision, which is a landmark decision, is eclipsed by Justice Kennedy announcing his retirement.  Which means, most likely Trump gets another pick.

Of course, I'm going to move on a prior prediction I made, that Mueller would time his release to interfere with the midterms, and predict that he'll adjust his timing to interfere with the SC nomination.

[D.W.]

Just as a point of clarification, and not suggesting you've personally made this claim, but:

Is Mueller stalling for biggest political disruption, or because he's got nothing to move with?

[D.W.]

Also, aren't we too close to the next presidential election to fill a S.C. seat?    I think you are only allowed to do that within 6 months of your inauguration or reelection. 

[NobleHunter]

We're certainly too close to the next congressional elections. I think it's only fair to give people the chance to elect a new Senate before a new supreme court justice is appointed.

[Seriati]

Just as a point of clarification, and not suggesting you've personally made this claim, but:

Is Mueller stalling for biggest political disruption, or because he's got nothing to move with?

In my view, one way to "make his investigation legal" is to bring it in front of a Congress controlled primarily by Democrats.  It's hard to see how a group that includes people that believed he could be impeached on day one would be critical about this investigation, regardless of its legitimacy, if it helps their cause.

In any event, if you think about what we'd see on August 1st (after Kennedy's retirement, but before a new Justice is put in place), you'd have a 4-4 court that would not be able to overturn an erroneous decision that claimed a President could be indicted.  That would literally be the ideal circumstances for a probe that wants to maximize the political consequences and confusion.  Or, in other words, too good of an opportunity to waste.

[Crunch]

We're certainly too close to the next congressional elections. I think it's only fair to give people the chance to elect a new Senate before a new supreme court justice is appointed.

Kagan confirmed just prior to 2010 midterms. The precedent in play is that a new justice be confirmed before the midterms.

By the way, how about senate Democrats, Harry Reid, and that nuclear option? That worked out spectacularly.

[Seriati]

I've actually seen NobleHunter's idea played out a few times.  It ignores the point however, that there won't be a new President after the midterms (or at least that would be a surprising result). 

The Republican Senate didn't cover itself in glory on Garland, but it's just a fact that if the parties had been reversed the Dems would never have let the appointment go through either.  Why else do you want the delay?  I'd bet we'd have a 8 member court for 3 years if Dems take the Senate.

[D.W.]

if the parties had been reversed the Dems would never have let the appointment go through either.

What do you base this on? 
I'm not suggesting that may be the case moving forward, but do you really think that?

To be clear, I don't want (and I don't think many expect) a delay.  We're just still not ready to let that whole thing go.  It's important to point out how absurd that situation was.  I think the slightly more likely outcome, but still not likely, is that some Republicans stop and think, "Ya, you know, that WAS some dangerous BS and may bite us in the ass."  It won't be now.  And the pay-off may be 'worth it' to many.  By any means necessary and all that.

[D.W.]

I stand corrected.  Most of the talk seems to suggest they ARE serious about delaying the nomination process.   

[rightleft22]

Democracy is dying

[TheDeamon]

We're certainly too close to the next congressional elections. I think it's only fair to give people the chance to elect a new Senate before a new supreme court justice is appointed.

Moot point, regardless of what happens with the open SCotUS seat, the odds are pretty good that the Republicans retain control of the Senate in 2019. The Senate Electoral map for this cycle is extremely hostile towards the Dems(as something like half of the Democratic Senators are up for election this year).

All the Democrats achieve by throwing up roadblocks in the Senate in regards to that SCotUS seat is increasing the risk that more Republicans show up to vote in November than might have otherwise. Which in turn has the knock-on effect of potentially giving the Republicans both more Senate seats than they'd get otherwise, and thanks to a stronger Republican turnout, it'll probably help defend a few House seats as well.

So I guess this is going to be an odd political standoff. Both parties have an equal number of compelling reasons to both delay, and accelerate the nomination process for Kennedy's replacement. A lot of it comes down to the risk/reward calculus the DNC makes and how disconnected from reality they are.

My expectation is their "Reality on the ground" however is going to force most Dems to support pushing it back to next year because Anti-Trump will eat them alive otherwise.

The more decisive part will be what game the GOP decides to play with it, as they can "go nuclear" and just take care of it. If they're feeling plucky, and play it smart, they'll let the Democrats delay it into next year and make it a "Get out the Vote" issue for Republicans. Anti-Trump was going to vote regardless, so SCotUS doesn't matter for them.

[yossarian22c]

I stand corrected.  Most of the talk seems to suggest they ARE serious about delaying the nomination process.   

Politicians love their whataboutism power play games.

It is extremely likely I will disagree with the nominee that Trump appoints but there is no reason to delay the confirmation vote until the new Senate is seated in January. On the other hand if things go slowly (the first candidate has to withdrawal) and then McConnel rams through a vote the week before the new Senate is seated that would be anti-democratic but not surprising.

[yossarian22c]

The more decisive part will be what game the GOP decides to play with it, as they can "go nuclear" and just take care of it. If they're feeling plucky, and play it smart, they'll let the Democrats delay it into next year and make it a "Get out the Vote" issue for Republicans. Anti-Trump was going to vote regardless, so SCotUS doesn't matter for them.

They already went nuclear and abolished the filibuster for SCotUS appointments with Gorsuch.

[rightleft22]

The GOP should wait and make it an election issue as that will get them most of the “Christion” vote
Many of the Christion’s I know vote based on a hard line for pro gun’s, pro-life and anti gay rights and would sell their souls to the devil to get everyone to live by those values.  Its God’s work!

[Seriati]

My expectation is their "Reality on the ground" however is going to force most Dems to support pushing it back to next year because Anti-Trump will eat them alive otherwise.

Reality on the ground is crazy complicated here.  The real question is what will motivate whose base more.  The Republicans can ram this through before the election, or after the election but before any new Senate sits.  They have absolute control over whether the issue is seating this Justice or not (think of how the Mass senate election was billed as stopping ObamaCare, and then didn't turn out to actually be able to stop it).  The only risk they have is if they let it get out of control.

The more complicated piece is what happens to the Senate seats in deep red states.  A vote by say Manchin against a Trump nominee to the SC will literally end his Senate run, and he's not the only one.  This is fight that if the progressives "force" it to occur will end any chance of a Senate take over, though it may increase the odds for a House switch.

[Seriati]

Fascinating NYT article on the court https://www.nytimes.com/interactive/2018/06/28/us/politics/supreme-court-2017-term-moved-right.html?&action=click&module=MoreInSection&pgtype=Article&region=Footer&contentCollection=Politics.  It includes some things I've been pointing out for a while, the liberal judges all vote liberal 80% plus of the time, while some of the "conservatives" including, both Roberts and Gorsuch vote less reliably "conservative."  And some surprises, the Trump admin's win record is pretty awful (though they won most of the high profile cases, I'd have to dig to see what they lost).

In any event, the idea that a "conservative" court is more dangerous is pretty much disproven, as only conservative judges "cross the lines" with any frequency.  In fact, I've always thought of Thomas as extreme, and yet, depending on the measure he's only as extreme as either 2 or all 4 of the leftist justices.