Open Thread: The Backpfeifengesicht SCOTUS Candidate

Important alert from Ed Kilgore, at NYMag — “Why Right-Wingers Want Sen. Mike Lee on SCOTUS”:

The Republican battle to make Barack Obama’s Supreme Court nominee Merrick Garland go away, and the efforts to pin down GOP presidential candidates on pre-vetted lists of potential Supremes, have all led to increased speculation about the next justice. At present, there’s a major boom among conservatives for Senator Mike Lee of Utah.

Today the Washington Post‘s James Hohmann offers a rundown on all the reasons Lee is enjoying this attention. For one thing, the Utah senator has long been considered Ted Cruz’s best friend in the upper chamber, so if Cruz is elected, it’s a bit of a no-brainer if Lee wants a robe. For another, Lee would probably have an easier time getting confirmed by his colleagues in the clubby Senate than some law professor or circuit-court judge, and might even avoid a Democratic filibuster (assuming Republicans haven’t already killed the SCOTUS filibuster via the “nuclear option”)…

… If nominated next year for the Scalia seat, Lee would be the youngest nominee since Clarence Thomas, who has now been on the Court for nearly a quarter of a century, with many years of extremism probably still ahead of him… For conservatives seeking a permanent grip on the Court and on constitutional law, someone Lee’s age is money.

But the second reason Lee would be significant is only hinted at by Hohmann in the praise lavished on the solon by the Heritage Foundation and longtime right-wing legal thinker Senator Jeff Sessions (the two most likely sources for SCOTUS advice for Donald Trump, as it happens). Lee’s not just any old “constitutional conservative”; he’s a leading exponent of what is called the Lochner school of constitutional theory, named after the early-twentieth-century decision that was the basis for SCOTUS invalidation of New Deal legislation until the threat of court-packing and a strategic flip-flop resolved what had become a major constitutional crisis.

Lee has, on occasion, suggested that child labor laws, Social Security, and Medicare are unconstitutional, because they breach the eternal limits on federal power sketched out by the Founders. Like most Lochnerians, he views the constitution and the courts as designed to keep democratic majorities from stepping on the God-given personal and property rights of individuals and corporations alike. So it’s no surprise he’s been a bitter critic of the deferential view towards Congress expressed by Chief Justice Roberts in the decision that saved Obamacare.

In effect, Mike Lee could become a more influential successor to Clarence Thomas — after overlapping with Thomas on the Court for a decade or two. If Democratic senators have a problem with that possibility, they might want to begin making noises about it so that at least the supposition that Lee is pretty easily confirmable may be called into question.

That Hohmann article is well worth reading, too, if you want all the gory details. Looks like the Repubs are prepared to do a lot worse than Judge Garland…

Wednesday Morning Open Thread: Good News for Judge Garland

Not snark, for once — there seems to be a grinding shift in the Conventional Wisdom (note source of above tweet). Senator Collins’ bold centrism might be connected to a report in The Hill:

Reid plots strategy to force vote on Obama nominee
Senate Democrats say they may try to force a vote on President Obama’s nominee to the Supreme Court with an unusual procedural tactic.

“There are many procedural things we can do,” Senate Democratic Leader Harry Reid (Nev.) said Tuesday when asked about the possibility of using a discharge resolution to bypass Republicans…

He and his Democratic colleagues want to keep the pressure on Republicans to hold hearings on the nominee, Judge Merrick Garland, believing they have the upper hand in the public relations battle.

“The obligation is for them to hold hearings and to have a vote. That’s in the Constitution,” Reid said. “Right now, we think we’re in a good place. The pressure’s on them, not on us.”…

Reid added that Grassley now has a more competitive reelection race. Democrats have recruited former Iowa Lt. Gov. Patty Judge, the toughest opponent he has faced in years.

“No one thought he would have a race,” he added. “This is a real drag on the Republicans.”

Reid noted that more than a dozen Senate Republicans have agreed to meet with Garland, although most have made clear they will do so only as a courtesy.

In addition to Kirk and Collins, at least 15 other Republicans have voiced willingness to meet. They are Sens. Kelly Ayotte (N.H.), John Boozman (Ark.), Bill Cassidy (La.), Jeff Flake (Ariz.), Grassley, Orrin Hatch (Utah), James Inhofe (Okla.), Ron Johnson (Wis.), James Lankford (Okla.), Moran, Murkowski, Rob Portman (Ohio), Mike Rounds (S.D.), Marco Rubio (Fla.) and Pat Toomey (Pa.)…

Senator Grassley has responded to this pressure with his usual gracious elan, per Politico:

The chairman of the Senate Judiciary Committee criticized John Roberts on the Senate floor Tuesday, accusing the chief justice of contributing to the growing politicization of the Supreme Court.

In a speech about 10 days before Justice Antonin Scalia died, Roberts warned that the trend of approving qualified Supreme Court nominees along party-line Senate votes undermines the legitimacy of the court. “The process is not functioning very well,” Roberts said.

“In fact, many of my constituents believe, with all due respect, that the chief justice is part of the problem,” Grassley said of Roberts, who has at times incensed conservatives with his votes to uphold Obamacare and other rulings. “They believe that [a] number of his votes have reflected political considerations, not legal ones.”…

The Iowa Republican went on to warn Roberts not to inject himself into the Senate showdown over whether Garland should be confirmed this year, which Republicans have vowed will not happen. Grassley said Roberts has been encouraged by some academics to urge the Senate to take up Garland’s nomination…

Responding to the speech, a spokesman for Minority Leader Harry Reid (D-Nev.) called Grassley “unglued” and said his remarks represent “an epic display of buck-passing.”

Double dog dare ya, Chuck! Also, there’s this note from the Washington Post

Retired neurosurgeon Ben Carson, who endorsed Trump after abandoning his own presidential bid, said that he spoke with Trump by phone on Tuesday about a list of 10 to 12 judges from whom the billionaire might fill vacancies on the Supreme Court.

Trump plans to release the names in the coming weeks as a sign of his seriousness and a validation of his claims to being a conservative, Carson said….

Serious as a heart attack, and validating our Democratic claim that the GOP is being held hostage by a vulgar short-fingered carnival barker…

Apart from our healthful daily helping of schadenfreude, what’s on the agenda for the day?

Get that Bullshit Out of My Face

When I was in the army, I had a Sergeant Major, who when displeased, would bellow “unass my AO (area of operations).” That’s basically what the Supreme Court did today:

The Supreme Court handed conservative challengers a loss Monday in a key voting rights case.

In a unanimous result, the court said a state can draw legislative districts based on total population. At issue in the case was the “one person, one vote” principle dating back to the 1960s, when the court held that state legislative districts must be drawn so they are equal in population.

Here’s a good background on what the shitters wanted to do:

But on December 8, the Supreme Court will hear a new challenge to “One person, one vote” in Evenwel v. Abbott, brought by the same conservative organization, the Project on Fair Representation, responsible for the gutting of the VRA in the 2013 case Shelby County v. Holder. The obscure Evenwel case, which challenges the drawing of State Senate districts in Texas, will have major ramifications for political representation in the United States.

The plaintiffs want legislative lines to be drawn based on eligible or registered voters instead of total population as measured by the US Census Bureau, thus not counting children, immigrants (documented and undocumented), prisoners, and other nonvoters. They claim the current system, by including nonvoters, denies “eligible voters their fundamental right to an equal vote.” Edward Blum, founder of the Project on Fair Representation, calls it “the principle of ‘electoral equality.’”

Long story short, this was nothing more than a transparent attempt to dilute the vote of minorities in urban areas by not counting people, but counting registered voters. Combined with conservative purges of voter roles, this would shift power to more rural areas. In other words, while the population of a city might have 1 million people, if only 200k were voters, the district would be apportioned to the voter rolls. This would shift power to more rural districts, and thus give conservatives an advantage, much like how the Senate inflates power in the hands low population states.

Ruth Bader Ginsburg wrote the opinion, and it read a little bit like this:


So that was some good news today.

Wednesday Morning Open Thread: Judicial Activism At Its Finest

New Hampshire’s Kelly Ayotte is the “GOP moderate” given the lead in that NYTimes article, and the “tough” issue first mentioned as bringing her grief from her less-RWNJ constituents is her refusal to meet with Judge Merrick Garland. Mark Kirk of Illinois gets a mention, but he was smart or desperate enough to break with Mitch McConnell on the touchy topic of President Obama’s new SCOTUS pick. (Kirk even called his fellow Repubs “too close-minded”.) Perennial “Sensible Centrist” Susan Collins went even further, per Buzzfeed:

… Asked in a radio interview on Tuesday if she was “catching hell from her own party,” Collins said, “Not really. Obviously, the leader’s not real happy with me.”

“I’m sure there’s some people who are unhappy with me, but this is a solemn responsibility and is very important,” she continued, noting both sides have played politics in the past with contentious Supreme Court nominations.

Collins said she was “perplexed” by McConnell’s position given the possible outcomes of the presidential election…

Dahlia Lithwick, tongue firmly in cheek, suggests a workaround…

…Judge Garland has been nominated by President Obama. Senate Republicans refuse to give him a hearing. After a suitable period of time—lets say by the end of September of 2016—Judge Garland should simply suit up and take the vacant seat at the court. This would entail walking into the Supreme Court on the first Monday in October, donning an extra black robe, seating himself at the bench, sipping from the mighty silver milkshake cup before him, and looking like he belongs there, in the manner of George Costanza.

Really, what could the other justices do? They aren’t going to have the marshals tackle him. He is, after all, the chief judge of the second most important court in the land, respected across the ideological spectrum. And in the absence of a Senate hearing on his nomination, one certainly might infer that the Senate has by now consented to his presence there. (If you’re the law review type, here is a very plausible argument that this is actually the case.) But more urgently, this is the kind of action—OK, “stunt”—that would draw attention to the fact that just because GOP senators want to pretend that Obama’s Supreme Court nominee is invisible, doesn’t mean that he has to play along. By my playbook, Garland could show up for work in a black robe every day in October, participate in oral arguments with a handful of incisive questions in November, and even start to write a few modest opinions in December, demonstrating how real his nomination is. By January, nobody will even remember that he never got a hearing!

What I love best about what I am calling the Reverse Bartleby is that Judge Garland would be achieving two vital goals: First, he would be doing his job and highlighting that this is precisely what Senate tantrum throwers are refusing to do. But second, he would be out-absurding the absurd, and bravely standing up for a principle: that the constitution, as Robert Jackson famously suggested, contemplates an effective government. And unlike what’s being modeled by most Republican senators, that principle is not something as ignoble as “we’ll blow up the court before we let it shift to the other side,” which looks more like hostage-taking than taking a stand. The additional points being made would include that the court functions better with nine judges than with eight, that if Republicans refuse to hold hearings, well, someone should solve that, and that advise and consent doesn’t mean that the NRA or the Koch brothers get a veto…

Apart from applauding deliberately farcical action in defense of the Constitution and the rule of law, what’s on the agenda for another day in a week that already seems to have gone on too long?

Sunday Evening Open Thread: Please Proceed, Senators

mcconnell defaces scotus handelsman

(Walt Handelsman via

Sen. Ron Johnson (R-Wis.) suggested Thursday he would be willing to meet with Supreme Court nominee Merrick Garland, though it won’t change his position.
“I have no problem with meeting with people,” he told the Milwaukee Journal Sentinel. “I’ll have to say, I’m not sure what the point will be.”

Johnson, considered one of the most vulnerable senators up for reelection, is the latest Republican to split with Majority Leader Mitch McConnell (R-Ky.) and say he would accept a meeting if the White House reaches out…

Republican Sens. Kelly Ayotte (N.H.), Mark Kirk (Ill.) and Rob Portman (Ohio) — who are in reelection fights that, along with Johnson’s, will help decide which party controls the Senate next year — have also said they would be willing to meet with Garland…

Separately, Sen. Orrin Hatch (R-Utah) said Thursday he would agree to a meeting, though it wouldn’t change his position. He also spoke with Garland Wednesday.

Apart from REPUBS IN DISARRAY!, what’s on the agenda as we wrap up the weekend?

I Don’t Think Garland is a Sacrificial Lamb

There’s been a great deal of talk about how Garland is a “sacrificial lamb,” but I’m just not buying it. I think Obama nominated Garland because he likes the nominee, believes that he is a good man, and believes that he can seat him. Here’s my reasoning.

1.) Obama doesn’t do sacrificial lambs, or throw people under the bus, or have people fall on their swords, or whatever other metaphor people want to use. In his administration, there have been, that I can recall, five high profile exits.

The first was Van Jones, and Obama didn’t sack the guy, he resigned, and he had to. He’d made a string of unforced errors, some of which were pretty stupid, and he was just not a good fit with the no-drama Obama team. Rahm left to become Mayor. Hillary left to get ready to become the nominee this election. That leaves Shirley Sherrod and Chuck Hagel. Hagel left because of disagreements with his boss and a whole lot of other issues in the Pentagon.

That leaves Sherrod, and that truly was a shitshow. Obama himself has said this was a mistake. Maybe I am missing some others, but these are the ones I remember. This is not a record indicative of someone who routinely mistreats or screws over people for political gain or when the going gets tough. The man does not “use” people. It’s not who he is.

It’s actually one of the things I admire most about this administration and the man. I think being a halfway decent President is akin to steering the Titanic while juggling blindfolded, and Obama has managed to do this with grace all while half the nation has been trying to trip him, throwing spitballs at him and screaming racial epithets. We’re never going to see an administration this well run again in our lifetimes, and he did it under fire from all quarters.


2.) Obama has never governed as a screaming liberal, and I don’t see him starting now. For better or for worse, Obama has never governed as a hard left progressive. If historians were honest, Bill Clinton and Barack Obama would be listed as the best moderate Republican Presidents of the last 100 years. Having said that, Obama has achieved a very progressive list of accomplishments. I have long felt that Obama’s personal views are far more progressive than his governance- I don’t think for one minute his positions on gay marriage ever evolved, I think they are the same today as they were years ago. What evolved is the nation full of neanderthals he is forced to govern.


3.) Obama has a sense of “fair play,” even when it isn’t deserved. I think it would have been completely out of character for him to nominate a left wing liberal to replace Scalia even if he could get said liberal seated. I just don’t think he would do it. I believe Obama trusts the kind of slow revolution with irreversible gains to large dramatic revolutions that can lead to just as radical course corrections. He plays the long game, and understands that seating Garland will already make the center of the court the most liberal it has been in years, and understands that barring a disaster for Democrats in the fall, will become even more so in the not so distant future.


4.) Garland is strong on the role of the federal government an agencies. While this can make many progressives mad, it makes pretty solid sense to me, examining Garland’s record, why an African-American President with a keen take on history would nominate someone who shows deference to the federal government and agency decision makers over “state’s rights.” I believe Obama views that Garland would have been on the right side of many recent bad rulings (VRA, affirmative action, etc.)


5.) Obviously, Obama understands that this puts the Republicans in a disastrous hole politically, particularly since they are basically on record saying “If Obama nominated X, we would confirm,” so Obama went out and nominated X and they are left stammering and shifting from foot to foot as dribble like this oozes out their cornfed pieholes:

U.S. Senate Republican leader Mitch McConnell said on Wednesday that President Barack Obama has politicized the Supreme Court nomination process by putting forward veteran appellate court judge Merrick Garland during a presidential election.

“It seems clear that President Obama made this nomination not with the intent of seeing the nominee confirmed, but in order to politicize it for purposes of the election,” McConnell said on the floor of the Senate after Obama, a Democrat, announced his choice at the White House.

“Instead of spending more time debating an issue where we can’t agree, let’s keep working to address the issues where we can,” the senator from Kentucky said.


6.) Obama does not want to leave unfinished business when he leaves office on 20 January 2017. Obama took office with a toxic smorgasbord of disasters both immediate and impending, all because his idiot predecessor couldn’t operate a lawnmower much less a nation. He does not want to do that to Hillary, who he believes will be his successor (and I think he is happy about that). He knows how that screwed up the start of his administration, having to focus on fixing things instead of advancing the ball, and he does not want to do that to someone else.

I think he also believes that this is HIS pick, not just some pick you sock away until the next President, whomever that might be. He’s a Constitutional lawyer, FFS. He actually believes in the process and the Constitution.

So, for all those reasons and probably a few more, I think this is a sincere, serious pick, and not some cynical ploy or sacrificial lamb. I think that not only does Obama think he can get him on the court, he wants him on the court. And I don’t think for one instant he would pull Garland’s nomination should the GOP agree to seat him in the lame duck session.

That’s not the kind of man he is, not the kind of negotiator he is. He sees value in Garland being on the court, and will get him on there, and he would never nominate someone like Garland and then pull the rug out from under him. It’s not in his DNA.

Have at it.

*** Update ***

I’ve added a new post commenting on the “moderate Republicans” line and what I really meant, and this from Aimai in the comments can not be said enough:

I also wanted to add that people seem to have a hard time grasping that Obama’s gestures, choices, policy tactics almost always have more than one side to them. They are usually a plan A and a plan B rolled together. To very young, angry, or stupid political viewers its always a zero sum game in which your first shot is your only shot and you can only get everything or nothing. But Obama’s pick of Garland wins whatever the republicans choose to do. He has asserted his constitutional duty, he has embarrased them publicly, he has split their senatorial caucus, he has given the democrats ammunition in senate races, he has increased the likelihood of right wing primaries, and if they roll over and take garland he gets a pick he is happy with completing three historic appts. Lots of his offers to the republicans have had this aspect. Its why they are afraid to negotiate with him at all.

Personally, I think any analysis of Obama and his administration is silly if it does not keep this extremely telling moment in mind:

“I like to know what I am talking about, Ed.”

The idiom goes that in the land of the blind, the one-eyed man is king. Obama has both of his.

The marginal importance of marginal ideological differences on the Supreme Court

I am not getting the argument that Obama’s choice of a moderate justice is a massive concession even if he can be confirmed before the lame duck session. Over a multi-iteration appointment game, I can see that, but in the single iteration the marginal variations of a typical Democratic appointment to the Court won’t swing that many cases from other scenarios with similar “typical” Democratic appointees. There are two cases we need to think about.

The most critical number on the Supreme Court is five. Five is a majority, and a Justice Garland or a Justice anyone else appointed by Obama or future President Clinton is extremely likely to side with the other four Democratic appointed Justices on the tough 5-4 cases that are not technical disputes over water rights. The key question is not where does Justice Garland stand, but where does the median justice stand.

The New York Times is arguing that scholars believe that the 5th justice in a hypothetical future configuration would either be Justice Breyer or Justice Garland. The current marginal majority justice is usually Justice Kennedy. Moving the marginal Justice to Breyer is a massive improvement. And here ideology matters as it is preferable to move the marginal justice as far to the left as possible so hopefully nominee Garland would be at least slightly to the left of Justice Breyer so that the close decisions are slightly more to the left than they otherwise would have been.

Over a longer term, moving the marginal justice further to the left means having multiple appointments that are to the left of Justice Breyer. And here I see a decent argument that there is a possibility of an opportunity lost if the GOP controlled Senate confirms Justice Garland in the lame duck. But the Democratic appointed/liberal leaning bench is far more tightly clustered than the reactionary side of the bench. So there is less gain possible there.

Ideology matters, but the biggest test is not marginal leftness but if Garland is within the general universe of typical Democratic nominees. And he is.

NY Times court median