OT: Supreme Court vacancy - Printable Version

OT: Supreme Court vacancy - Printable Version

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Re: OT: Supreme Court vacancy - 97fan - 02-15-2016

(02-15-2016, 02:05 PM)stupac2 link Wrote:There's so much game theory here it's actually pretty interesting to think about. It's basically a prisoner's dilemma, where R's either take the safe-but-nonideal outcome (Obama picks someone moderate like Sri who is then confirmed), or gamble for the ideal outcome (R's win presidency and keep senate, replace Scalia with reliable conservative) with a very real chance of a horrible outcome (D's win presidency and senate, replace Scalia with reliable liberal). It's not obvious at all to me that you want to gamble here, especially given the somewhat high likelihood of the GOP nominating Trump and everything going to hell in a handbasket.

And that's ignoring the fact that playing games with the nomination might actually make the least-desirable outcome more likely, but those second-order effects are really hard to game out (this has never happened before and it's hard to know which side is going to be more motivated by needing to replace a justice).

The problem with this analysis is that it only looks at the interests of the GOP as a whole. The interests of Mitch McConnell and other individual GOP senators are different from the collective interests of the party. Any GOP senator's vote in favor of any Obama nominee, even a moderate one, will draw the ire of Rush Limbaugh, Mark Levin, Glenn Beck et al., which in turn will invite a primary challenge.

Now, it's true that a few GOP senators are currently locked in tight reelection races in blue or purple states, and therefore have an incentive to vote for an Obama nominee. It's also true that senators are less vulnerable to fears of a primary challenge than House members are, since they only run every six years. For example, McConnell doesn't have to run again until 2020, at which point this Supreme Court battle may be old news.

But McConnell is already viewed with suspicion by the talk-radio base of the party, because he's occasionally cut deals with Obama. Remember what happened to John Boehner? That could easily be McConnell's fate if he allows a vote on Obama's choice to succeed Antonin Scalia. And for McConnell personally, what would be the upside of allowing that vote? There's almost none.

Bottom line, I'd be shocked if the Senate holds a vote before the November elections, even though I agree that the interests of the GOP as a whole would probably be best-served by negotiating with Obama in order to get the most conservative possible nominee.

By the way, this gap between the interests of the parties and those of individual members in heavily gerrymandered districts goes a long way toward explaining the increasing polarization in national politics.

Re: OT: Supreme Court vacancy - ColoradoTree - 02-15-2016

(02-15-2016, 01:55 PM)French Rage link Wrote:[quote author=ThePOC link=topic=14611.msg156563#msg156563 date=1455566782]
How would the possibility of the Democrats reclaiming control of the Senate this year throw a monkey wrench into things, if at all?Â It would seem to me that the GOP's hold on the Senate is tenuous at best, and hopefully they realize that.

And furthermore, would obstructing the nominations impact any of those races?Â As you mentioned, the GOP has to defend 24 of the 34 seats contested this election.Â And these are seats from the 2010 election cycle, which means there are probably a good number of them in blue/purple states.Â That's already a bit of a tough order, and if they are seen as obstructing the operation of the government does that give their opponents another issue to run on?
[/quote]

I absolutely think this is a bad issue for Republicans as a whole and makes it less likely that they retain the Senate.Â The problem from the GOP perspective is that those purple-state Senators aren't calling the shots, and the red-state Senators (the majority of the majority) have their own standing with conservatives and the base to worry about (and Presidential candidates want to excite the base as much as possible, making it likely that they'll take this position in order to even have a chance of being the GOP nominee).Â Assuming red-state Senators focus on their individual electoral survival, they're making the loss of their party's Senate majority that much more likely.Â I think stupac's game theory analysis is right on if we assume the Senate GOP's goal is to retain a majority and to get the most conservative nominee possible, but we also have to consider what Senate Republicans see as the likely political cost if they support any Democratic nominee: the end of their careers in a primary loss to a more conservative candidate.Â

Re: OT: Supreme Court vacancy - burger - 02-15-2016

(02-15-2016, 01:12 PM)TreesAndBirds link Wrote:And for those who think this polarization is overwhelmingly caused by Republicans, well, let's just say we disagree.

If you have a better set of data than the widely cited DW-NOMINATE figures I linked to, I'd like to see it.Â At least in terms of Congress, I've never seen any data suggesting that the Democrats have moved as far left as the Republicans have moved far right.Â There is no equivalent of the extreme right-wing Tea Party movement in the democratic party.Â (Yes, there is Bernie, but he's just one candidate.Â The two leading Republican candidates are as far right as Bernie is to the left, and Rubio isn't far behind.)

Re: OT: Supreme Court vacancy - stupac2 - 02-15-2016

(02-15-2016, 03:02 PM)97fan link Wrote:The problem with this analysis is that it only looks at the interests of the GOP as a whole.

Re: OT: Supreme Court vacancy - slide - 02-15-2016

(02-15-2016, 01:12 PM)TreesAndBirds link Wrote:ColoradoTree, I think your analysis is well done.

That said, my recollection is that the Democrats regularly used the fillibuster to thwart Pres. Bush's judicial nominees (although it didnt affect a Supreme Ct nominee) so the precedent of not allowing a vote on a President's nominee seems, unfortunately, to have been established.

But the bottom line is politics is becoming increasingly polarized, and this action by the Republicans, which I hope they are just using for leverage but wouldnt bet on it, is just one more step in that direction. And for those who think this polarization is overwhelmingly caused by Republicans, well, let's just say we disagree.

Re: OT: Supreme Court vacancy - washingtonismoney - 02-15-2016

(02-14-2016, 08:54 PM)CornFed link Wrote:Fat chance.Â Do you actually believe that Republicans have moved any further right than their opposition has moved left?Â The chasm of division between the two parties has been widened by this President and I do not expect him to start acting in a reasonable manner at this point.

Actually political science is pretty definitive here! Republicans have moved farther to the right than Democrats to the left:

http://www.npr.org/sections/itsallpolitics/2012/04/10/150349438/gops-rightward-shift-higher-polarization-fills-political-scientist-with-dread

Re: OT: Supreme Court vacancy - washingtonismoney - 02-15-2016

(02-14-2016, 11:48 PM)81alum link Wrote:Many ideology surveys show only minimal change among Americans over the last 50 years on political ideology.Â

Hm, I'm not sure this is accurate. People have become much more stratified in their ideology and much more likely to vote straight down the ballot.

Re: OT: Supreme Court vacancy - washingtonismoney - 02-15-2016

One last comment here! There's been a lot of discussion over the text of the Constitution and what it empowers each respective branch to do. It's very Scalia-esque; I'm sure he would be pleased. Nevertheless I think it misses the point.

Governments are made effective because of their informal norms as much as, if not greater than, their formal rules and procedures. In 1968, for example, Republicans were perfectly willing in theory to confirm a Supreme Court justice -- they blocked Abe Fortas because he was outstandingly corrupt. The same in 1988 with Kennedy. That is, the legislature deferred to the executive.

What's slightly terrifying to a neutral observer these days is the frequency with which both parties are abandoning long-held informal norms for partisan gain. It used to be that filibusters were incredibly rarely used; their use escalated during the second GWB term, and then escalated another degree during Obama's administration. The Senate used to be very hands-off with respect to confirming nominees; now it's a real quagmire to get anyone through. (Take the FDA, one of the least partisan agencies out there -- currently Obama's widely-respected nominee is having to traverse the muck to get through.)

American government used to have a lot of understandings that worked when people weren't incredibly partisan- and personally-focused. My old workplace used to bring bagels to work, and people would recompense the person with a couple of bucks every now and again. It worked, because no one was a jerk. The government was more-or-less the same in many respects. (It was a worse government overall, but it kept a lot of informal norms sacred.)

Now, because of increasing partisanship, those norms are breaking down. I fear we'll need to completely reform American government to accommodate that reality.

Re: OT: Supreme Court vacancy - stupac2 - 02-15-2016

(02-15-2016, 03:38 PM)garvin link Wrote:I also suspect the Supreme Court itself would resist a recess appointment.

What makes you think that? It's been done before (for instance, Earl Warren was a recess appointee before being confirmed). I'm also not sure what say the court would have, since they could presumably only rule if someone brought a case, and who would have standing?

Re: OT: Supreme Court vacancy - burger - 02-15-2016

(02-15-2016, 03:46 PM)washingtonismoney link Wrote:Now, because of increasing partisanship, those norms are breaking down. I fear we'll need to completely reform American government to accommodate that reality.

Re: OT: Supreme Court vacancy - Farm93 - 02-15-2016

(02-15-2016, 02:26 PM)ThePOC link Wrote:[quote author=Farm93 link=topic=14611.msg156568#msg156568 date=1455570606]
Big turnout is a big problem for the RNC.Â Big turnout in Montana or California would change nothing, but big turnout in Ohio, North Carolina or Florida would almost certainly move purple states to very solid blue states.

Odds seem strong that Obama will nominate someone close to moderate.Â The Republicans in the Senate seem set to stall anyway.Â Problem for the RNC is that an actual reason to vote that inspires many is not going to be good for the RNC.Â The Democratic nominee could pre-select some very exciting pick (ie, Sen. Warren, an Asian-American, a minority female).Â That prospect could fuel high Democratic party turnout.Â The Republican nominee would already/should already benefit from high GOP turnout, so this issue, and any theoretical picks by either party, should not offer many incremental RNC voters.

Some irony in the idea that the Republicans stalling could be a gift to the DNC.Â Wonder if the Republican Senate might approve an Obama nominee if the polling in August or September suggests that the unfilled vacancy is serving as a catalyst for DNC voter turnout.

It is a pretty fun game theory case.Â Likely to be analyzed for decades.

Huh?
[/quote]

Different examples...Senator Warren or an Asian American or a minority female.Â Â

Re: OT: Supreme Court vacancy - washingtonismoney - 02-15-2016

(02-15-2016, 03:57 PM)burger link Wrote:[quote author=washingtonismoney link=topic=14611.msg156582#msg156582 date=1455576371]Now, because of increasing partisanship, those norms are breaking down. I fear we'll need to completely reform American government to accommodate that reality.

Re: OT: Supreme Court vacancy - ColoradoTree - 02-15-2016

On the topic of a recess appointment, that would only work if the Senate were ever formally in recess, which I don't expect Mitch McConnell to allow now that there is a Supreme Court vacancy.Â

Here, the distinction between what we understand to be a recess--nobody is there, they're all back in their home states--and what the Senate itself considers a recess is what matters.Â That's because of the Senate practice of holding "pro forma" sessions where one Senator gavels the Senate into session and gavels it closed again a minute or so later, despite the presiding Senator being the only one in the chamber (or even in Washington).Â Historically, they were used to make sure both the Senate and House were complying with Article I, Section 5 of the Constitution, which forbids one house from adjourning for more than three days without the consent of the other house.Â (This consent is easy to get when the House and Senate are of the same party, but more difficult when there is divided government, and particularly when the House is of a different party than the President.)Â Whatever the original purpose, the effect of those sessions is to keep the Senate technically in session so that there is no formal recess that would trigger the President's ability to make a recess appointment, and their use has evolved to make this one of the main reasons for holding pro forma sessions.

This practice was challenged recently in the Noel Canning v. NLRB case.Â Quick background: The National Labor Relations Board lacked a quorum to conduct business from 2007 through 2013, effectively making labor disputes incapable of resolution until a quorum was restored.Â President Obama had trouble getting nominees through the Senate (even when Democrats held the majority, Republicans threatened a filibuster), so made a trio of recess appointments on January 4, 2012 to restore the Board to a quorum.Â The issue was that the Senate had not technically been in recess, because they had one Senator stay behind to gavel a session open and close it a minute later (though, ironically, it was a Dem-controlled Senate doing it here, obviously not to stymie a President of their own party, but to comply with Art. I, Sec. 5, because the Republican-controlled House wouldn't agree to a recess).Â The Supreme Court ultimately ruled that the Senate is in session when the Senate says it is, so pro forma sessions effectively foreclose the ability to make recess appointments.

Thus, while the recess appointments power still exists, it is severely limited by current Senate practice.Â For it to apply, you'd need a Senate majority of the same party as the President, but in the 51-59 seat range.Â More than that and you could just end the filibuster of the nomination and confirm the nominee.Â You'd also need a House majority to concur in the recess to allow the Senate to be formally in recess (and for that recess to last longer than ten days, per the Noel Canning case).Â So, assuming that McConnell has someone mind the store until the new Congress is sworn in, the recess appointment power is not an option for confirming a successor to Justice Scalia.Â

Re: OT: Supreme Court vacancy - ColoradoTree - 02-15-2016

(02-15-2016, 03:10 PM)stupac2 link Wrote:[quote author=97fan link=topic=14611.msg156573#msg156573 date=1455573772]The problem with this analysis is that it only looks at the interests of the GOP as a whole.

Is it a really a problem if something only discusses one aspect in its scope? The fact that individual incentives may conflict with party incentives doesn't invalidate looking at the party incentives.
[/quote]

Not a problem, no.Â Just a way of explaining why the Senate GOP is doing something that may seem contrary to party incentives but in line with individual incentives, I should think.Â

Re: OT: Supreme Court vacancy - TreesAndBirds - 02-15-2016

(02-15-2016, 03:20 PM)slide link Wrote:[quote author=TreesAndBirds link=topic=14611.msg156564#msg156564 date=1455567155]
ColoradoTree, I think your analysis is well done.

That said, my recollection is that the Democrats regularly used the fillibuster to thwart Pres. Bush's judicial nominees (although it didnt affect a Supreme Ct nominee) so the precedent of not allowing a vote on a President's nominee seems, unfortunately, to have been established.

But the bottom line is politics is becoming increasingly polarized, and this action by the Republicans, which I hope they are just using for leverage but wouldnt bet on it, is just one more step in that direction. And for those who think this polarization is overwhelmingly caused by Republicans, well, let's just say we disagree.

I used to watch the nominations process closely but no longer.Â I am linking an old Politifact piece.Â as of 2013: "By our calculation, there were actually 68 individual nominees blocked prior to Obama taking office and 79 (so far) during Obamas term, for a total of 147."

http://www.politifact.com/truth-o-meter/statements/2013/nov/22/harry-reid/harry-reid-says-82-presidential-nominees-have-been/
[/quote]

Thanks for the information. My info is more limited to nominees in the GWB administration, when it seemed that the Dems were ratcheting up the blocking of judicial nominees. https://en.m.wikipedia.org/wiki/George_W._Bush_judicial_appointment_controversies

I am not surprised that there is more blocking of nominees under President Obama, because polarization is getting worse. But the Democrats did more than their share under GWB, and the Republicans have ratcheted it up, and I suspect that the losing party in November will ratchet it up even more.

Re: OT: Supreme Court vacancy - stupac2 - 02-15-2016

(02-15-2016, 04:14 PM)washingtonismoney link Wrote:[quote author=burger link=topic=14611.msg156586#msg156586 date=1455577076]
[quote author=washingtonismoney link=topic=14611.msg156582#msg156582 date=1455576371]Now, because of increasing partisanship, those norms are breaking down. I fear we'll need to completely reform American government to accommodate that reality.

Did you see this article by Matt Yglesias?Â He agrees with everything you said but takes it a step (or nine) further: the system is going to collapse sooner or later because the constitution is not up to resolving these issues.Â http://www.vox.com/2015/3/2/8120063/american-democracy-doomed
[/quote]

I did, yes -- it's one of the articles I had in mind.

I think another article in that series poses what I think is the most likely scenario: like the Romans the founders so admired, the President will gradually dispose of the legislature -- and effectively rule more-or-less unilaterally for his term. American Caesars, in essence.
[/quote]

At this point it's basically inevitable. It seems wildly unlikely that we'll ever get reforms that ensure unified government, or that we'll go back to the non-ideological parties that could actually govern together. But we've seen the president taking more and more power (and congress sometimes willingly abdicating it), so it's pretty easy to project that trendline.

But, unlike ferrari, I'm not totally sure this is a bad thing. The question is what do you think is worse, a term-limited, judicially (and somewhat congressionally) constrained monarch, or a nearly nonfunctional government? Besides "fear of change" I'm not so sure why the latter is obviously better.

Re: OT: Supreme Court vacancy - TrumpCard - 02-15-2016

People, let's get serious about the real threat out there.Â If the nominee is Wotford, he is a friggin kal alumnus.Â What's the chance that the next president would repeat such a grave error?Â

Re: OT: Supreme Court vacancy - burger - 02-15-2016

(02-15-2016, 06:24 PM)ferrari link Wrote:[quote author=stupac2 link=topic=14611.msg156594#msg156594 date=1455584830]
At this point it's basically inevitable. It seems wildly unlikely that we'll ever get reforms that ensure unified government, or that we'll go back to the non-ideological parties that could actually govern together. But we've seen the president taking more and more power (and congress sometimes willingly abdicating it), so it's pretty easy to project that trendline.

But, unlike ferrari, I'm not totally sure this is a bad thing. The question is what do you think is worse, a term-limited, judicially (and somewhat congressionally) constrained monarch, or a nearly nonfunctional government? Besides "fear of change" I'm not so sure why the latter is obviously better.

You're not serious, are you?Â There are still a few "Peoples' Republics" out there and no thank you.Â Whether it's an individual or an oligarchy, there are numerous counties in the Middle East, not to mention China, North Korea, Cuba, and Russia that offer that sort of rational, efficient government if that is what you prefer.Â Each has a "judiciary."Â Each has a "parliament."Â If that appeals to you, you should feel free to emigrate there.Â "Fear of change?"Â Are you kidding?Â As an elite I'm sure you would fare well, but I am willing to die before it happens here.Â Not that you care, probably, but I am deadly serious.
[/quote]

I don't think you understand, Ferrari.Â What stupac2 is talking about is essentially a parliamentary system in which you vote for an entire government, with both executive and legislative power.Â Then, when that government becomes unpopular, it gets voted out and replaced with a new one.

I'm all for this.Â If you like democracy, you should be in favor of this, too, because these types of governments are much more responsive to the current mood of the people (for better or worse).

Also, can we please do away with the death and 2nd amendment talk?Â Killing people ("willing to die" = "willing to kill people" in my book, like that guy in Oregon who pulled a gun on the feds) has no place in this sort of discussion.

Re: OT: Supreme Court vacancy - stupac2 - 02-15-2016

(02-15-2016, 07:00 PM)garvin link Wrote:
Quote:What makes you think that? It's been done before (for instance, Earl Warren was a recess appointee before being confirmed)

These cases aren't similar at all. Warren was appointed when Eisenhower had three years left in his presidential term and the possibility of another term after that, so his appointment didn't face the prospect of being instantly overturned. And he didn't tip a 5-4 court in the opposite direction.

Sure, but there's nothing stopping it (well, besides the senate refusing to go into recess, which they will probably do). You made it sound like it's illegal or the rest of the court would refuse to seat the member, which is clearly not the case.

(02-15-2016, 07:15 PM)burger link Wrote:I don't think you understand, Ferrari.Â What stupac2 is talking about is essentially a parliamentary system in which you vote for an entire government, with both executive and legislative power.Â Then, when that government becomes unpopular, it gets voted out and replaced with a new one.

I'm all for this.Â If you like democracy, you should be in favor of this, too, because these types of governments are much more responsive to the current mood of the people (for better or worse).

Also, can we please do away with the death and 2nd amendment talk?Â Killing people ("willing to die" = "willing to kill people" in my book, like that guy in Oregon who pulled a gun on the feds) has no place in this sort of discussion.

At this point I think it's best to just completely ignore ferrari on these politics posts. It's clear that his particular combination of ignorance and vehemence is wildly out of place on this board.

Anyway, that's what I want, since the record of presidential systems like ours is abysmal and it was clearly not designed to function with parties, especially parties that are as partisan as ours currently are. Some sort of parliamentary system works better. But I'm not sure that's what we'd get. There are a lot of different paths our government could take from here, all that's clear is that, assuming current trends hold (which isn't a great assumption but it's what we've got) the President will continue to get stronger and the legislature will continue to get weaker. What's uncertain is whether those two trends tip us into an actual "imperial presidency", where the president is essentially a term-limited dictator, but still checked by our current institutions like the courts and federal bureaucracy. (I am ignoring the inane conservative chatter that Obama has already done this. He can't even appoint his own judges ffs.)

It's hard for me to imagine congress ever abdicating power of the purse (and if it happens you'll be long dead ferrari, don't worry), so I don't think we'll ever get there. But it would probably be better to have that than the hot mess we currently have, where there are dozens of brobdingnagian problems that everyone knows and admits are problems (things like our dismal infrastructure, the ludicrous corporate tax code, the immigration situation) but that no one wants to just man up and fix, either because they can't agree on how to do or just don't want to compromise. Is it really worth all that to be voting for four people at the federal level instead of one? I can't see why.

Re: OT: Supreme Court vacancy - 82 Card - 02-15-2016

(02-15-2016, 01:06 PM)ThePOC link Wrote:How would the possibility of the Democrats reclaiming control of the Senate this year throw a monkey wrench into things, if at all?Â It would seem to me that the GOP's hold on the Senate is tenuous at best, and hopefully they realize that.

`

That would depend on whether the Republicans become afraid that the loss would be so catastrophic that it would produce a filibuster proof majority for the Democrats. Although not impossible, it is very unlikely. For a party that has professed the desire to shrink government to the point where it can be drowned in a bathtub, having the Supreme Court shrink to 8 or less members may be preferable to having a healthy moderate court or at least toÂ being seen allowing such a thing.