OT: Supreme Court vacancy - Printable Version

OT: Supreme Court vacancy - Printable Version

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

Stupac, wouldnt it be simpler to adopt the California voting system ( the two candidates with the largest number of votes in the primary meet in the general election, regardless of party) to encourage candidates to aim for the middle to attract voters from the other party. I dont know if there is any evidence yet on how well its working, but in theory it seems like a good response to gerrymandered districts that result in more extreme candidates from the dominant party.

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

(02-15-2016, 09:35 PM)82 Card link Wrote: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.

That ranks right up there with "Mission accomplished" and "If you like your plan, you can keep it" on the laughable political quotes scale.

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

(02-15-2016, 07:15 PM)burger link Wrote:[quote author=ferrari link=topic=14611.msg156596#msg156596 date=1455585842]
[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.
[/quote]

Well, except what Stupac agreed with was this statement by WIM:

"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."

Doesn't sound like his "power of the purse" to me, but I leave it to you more nuanced political thinkers to ponder.Â If Hail Caesar is want you want, enjoy it.Â Out.

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

(02-15-2016, 09:39 PM)TreesAndBirds link Wrote:Stupac, wouldnt it be simpler to adopt the California voting system ( the two candidates with the largest number of votes in the primary meet in the general election, regardless of party) to encourage candidates to aim for the middle to attract voters from the other party. I dont know if there is any evidence yet on how well its working, but in theory it seems like a good response to gerrymandered districts that result in more extreme candidates from the dominant party.

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

(02-15-2016, 09:57 PM)Farm93 link Wrote:[quote author=TreesAndBirds link=topic=14611.msg156608#msg156608 date=1455597590]
Stupac, wouldnt it be simpler to adopt the California voting system ( the two candidates with the largest number of votes in the primary meet in the general election, regardless of party) to encourage candidates to aim for the middle to attract voters from the other party. I dont know if there is any evidence yet on how well its working, but in theory it seems like a good response to gerrymandered districts that result in more extreme candidates from the dominant party.

Re: OT: Supreme Court vacancy - 81alum - 02-16-2016

(02-15-2016, 03:38 PM)washingtonismoney link Wrote:[quote author=81alum link=topic=14611.msg156536#msg156536 date=1455518917]
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.
[/quote]
https://www.washingtonpost.com/blogs/monkey-cage/wp/2015/10/13/no-americans-have-not-become-more-ideologically-polarized/

While this is a Post article, it summarized a fairly sophisticated study published in the Journal of Politics, one of a number of fairly well respected Political Science journals--now published by the University of Chicago Press.Â I think the argument made by the two assistant professors is spot-on.Â We mistake party-sorting for polarization.Â The main difference in the American public is that conservative Democrats have become Republicans, and liberal Republicans have become Democrats.Â But they are still conservatives or liberals, respectively, and have not drifted to the right or the left of their previous ideologies.

It is in this way that one can say you are correct that there are many more people who 'vote straight down the ballot" but that I am also correct in that the overall ideological balance of the nation has not changed.Â

The two political parties have become more "pure" in their respective ideologies, then, but there are no more liberals or conservatives than there ever have been.Â The phenomenon we are seeing is therefore institutional and not cultural--it is the particular way our political system sorts out the ideological differences of Americans that has changed--not the ideologies of Americans.

Re: OT: Supreme Court vacancy - Farm93 - 02-16-2016

(02-15-2016, 10:17 PM)TreesAndBirds link Wrote:[quote author=Farm93 link=topic=14611.msg156612#msg156612 date=1455598664]
[quote author=TreesAndBirds link=topic=14611.msg156608#msg156608 date=1455597590]
Stupac, wouldnt it be simpler to adopt the California voting system ( the two candidates with the largest number of votes in the primary meet in the general election, regardless of party) to encourage candidates to aim for the middle to attract voters from the other party. I dont know if there is any evidence yet on how well its working, but in theory it seems like a good response to gerrymandered districts that result in more extreme candidates from the dominant party.

Not sure I really love the top two candidate primary in California.Â It seems like both parties are now so afraid that three or four strong candidates will split the vote that the result has become that each party really forces the issue by allowing only one or two candidates.Â Those candidates need to be loyal members of the party to get that entry ticket.Â So now the real primary is just happening behind the scenes.Â I guess the process provides more moderate types, but it seems the process really just rewards ultra-loyal members of the political machines.Â

I used to enjoy the trying to pick between a dozen options in down ballot primaries.Â Sigh.
[/quote]

We have different experiences. In the San Jose area no Republican has a chance and Mike Honda was the incumbent representative. Democrat Ro Khanna (teaches econ at Stanford) got 28% in the primary compared to Honda's 48%, but Khanna got 48% in the general election. In other words almost the entire Republican vote went to him in the general election and he just missed upsetting an incumbent by appealing across party lines. I think this system has lots of potential.
[/quote]

You do realize the lesson the DNC will take is that NEXT time it will be important to make sure any runner-up on the Democratic side is also far to the left.Â Can't risk letting a moderate win in a VERY blue district.Â Same rule applies in Red districts.Â The risk-averse party machines just can't afford the chance that five or six dreamers split the vote on one side allowing two relatively strong players from the other party to claim the final two spots.

I remember in the 90s the primaries had a half dozen candidates from each party, now it seems as if it is always one or two.Â Certainly never 6, 7 or 8.

My only point was the new system rewards the party machinery that is capable of controlling the number of names on the primary ticket.

Re: OT: Supreme Court vacancy - oldalum - 02-16-2016

am I the only one who finds it hypocritical for politicians and pundits to praise Scalia to high heaven for his fanatical adherence to textual interpretation of the Constitution, and then call for Obama to defer any S.C. nomination to the next president so that the "people" can choose? The goal of Scalia's analysis is to discern from the text what was the intent of the framers. The text of the constitution says nothing about lame duck year appointments. If the framers thought it would be advisable to defer lame duck year appointments to the next president, they knew how to write in that language, but they didn't. The constitution clearly intends lame duck appointments to be made. I see no text-based argument to the contrary. So the argument for deferring to the next president is simply, I think it would be a good idea even though there is nothing in the constitution to support it; to which Obama should (and will reply), thank you for your expressing your opinion, here is my decision.

Re: OT: Supreme Court vacancy - stupac2 - 02-16-2016

(02-16-2016, 08:18 AM)garvin link Wrote:
Quote: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.

Yeah, nothing vehement in your post.

Uh, could you at least do the me the kindness of pointing it out where I posted something that was similar to literally advocating political murder?

Re: California's "top two" primaries, I don't know enough about the system to have a solid opinion of how it would work. I tend to think that we'd get better (defined here as: more representative of the median voter) results with ranked choice voting (ie you pick your top N candidates, where #1 gets N points, #2 gets N-1, and #N gets 1, highest point total wins) but I'm not certain about that. I believe that's the system Oakland uses to pick the mayor, at least based on the ballot, but it's certainly not common. Though this obviously only works in somewhat crowded fields, there's no real point to doing it with only two candidates, unless there's a difference between "both are acceptable to me but I have this preference" and "only this one is acceptable to me". You could envision some moderation happening there, but it's really hard to know what would happen.

As I said before, though, I think the main problem is that our system was designed around finding compromise which is close to impossible when you have highly ideological parties. Given those parties, a parliamentary system works better, unless your preference is for the government to simply stop functioning, then our current system is just hunky dory.

Re: OT: Supreme Court vacancy - ColoradoTree - 02-16-2016

(02-16-2016, 09:48 AM)oldalum link Wrote:am I the only one who finds it hypocritical for politicians and pundits to praise Scalia to high heaven for his fanatical adherence to textual interpretation of the Constitution, and then call for Obama to defer any S.C. nomination to the next president so that the "people" can choose? The goal of Scalia's analysis is to discern from the text what was the intent of the framers. The text of the constitution says nothing about lame duck year appointments. If the framers thought it would be advisable to defer lame duck year appointments to the next president, they knew how to write in that language, but they didn't. The constitution clearly intends lame duck appointments to be made. I see no text-based argument to the contrary. So the argument for deferring to the next president is simply, I think it would be a good idea even though there is nothing in the constitution to support it; to which Obama should (and will reply), thank you for your expressing your opinion, here is my decision.

Well, yeah.Â There's no Constitutional basis for it, but I don't think the Republicans are making such an argument.Â They realize there's no such reason, but for political reasons, they have to come up with something.Â Hence the specious appeal to direct democracy--i.e., this is so important, we need the people to weigh in this fall.Â But I think anyone who's paying attention, including my Republican friends, realize that's pure sophistry.Â This is to drive up GOP turnout in the hope that a Republican can win the White House and nominate Scalia's successor.Â It's certainly understandable, since a liberal replacement for Scalia could undo many of the recent 5-4 decisions that went the conservatives' way.Â It's just not a practice rooted in history or the Constitution.Â

In sum, of course it's hypocritical.Â The question is whether they'll be punished for that hypocrisy at the ballot box in November.Â I tend to think they will, but a Republican colleague of mine is fairly convinced this is a winning political issue for them because of the effect it will have on GOP turnout.Â (I tend to think turnout would have already been pretty sky-high for them, and anger over a stalled nomination would actually be a net boost to Democratic turnout, but I suppose we'll see.)Â Or perhaps the Senate GOP already sees its chances of retaining the Senate as low (given the number of blue- and purple-state GOP Senators up this cycle), so figures it needs to shake up the dynamic?Â In any event, it's obviously a purely political decision rather than one rooted in any sense of Constitutional or democratic tradition.Â I don't think that's really in dispute.Â

Reminds me of 2008, when in the summer before the election, Sen. McConnell (as Minority Leader) took to the Senate floor to decry the use of the so-called "Thurmond Rule"--which he claimed didn't exist and never had--to hold up President George W. Bush's last batch of judicial nominees, and instead arguing that the Senate should hold hearings and vote on nominees through the end of the summer, at least.Â This, combined with the Kennedy confirmation vote and the lack of other election-year SCOTUS nominees being rejected, tells us there's no precedent for what's being proposed.Â So, it's without support in the Constitution or Senate history.Â As I said previously, the Senate has the Constitutional power to withhold consent, and presumably by any means it so chooses, but that consent power has always been exercised in the past to examine a particular nominee and decide whether that nominee should be confirmed.Â

This is the kind of stuff that leads to Constitutional crises in presidential systems with a shorter history than ours (and which, has been pointed out elsewhere in this thread, have an unfortunate history of failing).Â If an Obama nominee is denied hearings and a vote for nearly a year, what's to stop a Majority Leader Schumer from denying a vote to a Cruz or Trump nominee for four?Â The stakes will only rise with the possible deaths or retirements of the other older Justices like Ginsburg (age 82), Kennedy (79), and Breyer (77).Â We saw that breakdown on the refusal by Republicans to confirm any nominees to the National Labor Relations Board, leading that body to become incapable of acting due to a lack of quorum.Â I would hope that the importance of the Supreme Court would mean that the American people would eventually make a change at President or in the Senate to allow nominees to be confirmed.Â

And because this prospect is so terrifying, I'm optimistic that the Senate will reverse course after the election and confirm Obama's nominee in the lame duck session (unless a Republican is elected President, of course).Â At that point, if Hillary is elected and Democrats win back a Senate majority, the choice will presumably be between a known (a relative moderate, we assume) and an unknown (potentially an outspoken liberal as a Clinton nominee).Â With the election past and base motivations mooted, I should think enough Republicans would coalesce around a moderate nominee to get confirmation done by the end of December.Â (In order for that timeframe to work, though, a lot of the background work on the nominee will probably be done during the campaign, so that hearings could be scheduled in mid-November for a December confirmation.)Â That assumes, of course, that President Obama doesn't choose to withdraw his nominee once he realizes Hillary is in position to make a more consequential (in terms of youth and ideology) appointment to the Supreme Court.Â But it would be tough to walk away from a qualified nominee that just weathered an electoral hurricane and that the Senate now says it would confirm.Â

Re: OT: Supreme Court vacancy - ColoradoTree - 02-16-2016

(02-16-2016, 10:12 AM)stupac2 link Wrote:As I said before, though, I think the main problem is that our system was designed around finding compromise which is close to impossible when you have highly ideological parties. Given those parties, a parliamentary system works better, unless your preference is for the government to simply stop functioning, then our current system is just hunky dory.

I think the problem is that for one of the two major parties, a functioning and efficient federal government isn't nearly as important as it is to the other.Â This is why Democrats will be at a disadvantage in any government shutdown fight, because a shutdown is catastrophic to a Democratic view of government (as a potential force for good in people's lives, as shutdowns mean that various programs Democrats find important stop helping people) but somewhat in service of a Republican view of government (as a restriction on individual liberty through onerous regulations and omnipresence in American lives), particularly since the military remains functioning during shutdowns.Â

Thus, a neutered federal government isn't a bug to many Republicans--it's a feature.Â

Re: OT: Supreme Court vacancy - Farm93 - 02-16-2016

The SCOTUS situation is pure game theory and politics.Â The Constitution is clearly taking a back seat.Â I don't think anyone can really see it any other way.Â However, consistent with the game theory and politics it becomes important for some in the game to claim it is Constitutional and/or the ultimate democratic process.

Either way I am sure the news channels and talk radio types are THRILLED.

Path forward seems clear.Â Obama will nominate someone just left of moderate.Â Republican Senators will refuse to vote claiming the nominee does not honor Scalia, etc.Â Both parties will use the SCOTUS opening as a rally cry at their conventions.Â One party or the other will discover they underestimated the impact of the game.Â If Dems are wrong (ie. GOP likely to win POTUS) then they will be stuck.Â If GOP is wrong (ie. Senate power negatively impacted by stalling) then they may want to approve Obama's nominee.Â Dems could then pull the nominee or filibuster if victory in November looks probable.

Seems as though the GOP is banking on the idea that this is an election year winner for them.Â I would have thought the GOP base was already motivated based on Iowa and NH participation numbers.Â Still this looks like classic loss aversion for the GOP.Â Better to take an improbable risky bet to maintain the status quo than accept a certain (though less significant) loss.

Just know that game theory, political science and psychology books will be written on this subject for years.Â

Re: OT: Supreme Court vacancy - martyup - 02-16-2016

I think it is hypocritical to use a strict contructionist argument to force the replacement of a strict contructionist Supreme Court justice with a judicial activist.

I don't agree that a strict adherence to the Constitution precludes the Senate from blocking a nominee.Â Both parties have blocked nominees per the "advice and consent" power.

The American federal constitutional republic is and has been the most successful form of government ever formed.Â Unlike some of you Cardboarders, I'm not ready to throw in the towel.Â

Re: OT: Supreme Court vacancy - oldalum - 02-16-2016

(02-16-2016, 12:34 PM)martyup link Wrote:I think it is hypocritical to use a strict contructionist argument to force the replacement of a strict contructionist Supreme Court justice with a judicial activist.

I don't see how this "strict constructionist argument" is "forcing" anything of the sort you suggest. It applies to the nomination of a replacement justice, not to his or her approval by the Senate, which seems highly unlikely for any "judicial activist" if one is nominated. And of course the argument would apply equally strongly if the parties' current positions were reversed--a good test of whether a particular argument is motivated by political partisanship of the moment.

What I find hypocritical is to endorse strict constructionism as the highest and best form of constitutional interpretation and in the next breath completely violate it.

Re: OT: Supreme Court vacancy - martyup - 02-16-2016

That's my point.Â Strict constructionism does not require the Senate to approve a nominee.Â I've heard a number of leftists argue that the Constitution mandates approval of Obama's nominee.Â So they want to use an inaccurate strict interpretation of the Constitution to argue that the Senate is obligated to confirm any Obama nominee, despite the fact that the nominee will most assuredly be a judicial activist.

Re: OT: Supreme Court vacancy - ColoradoTree - 02-16-2016

(02-16-2016, 12:34 PM)martyup link Wrote:I think it is hypocritical to use a strict contructionist argument to force the replacement of a strict contructionist Supreme Court justice with a judicial activist.

I don't agree that a strict adherence to the Constitution precludes the Senate from blocking a nominee.Â Both parties have blocked nominees per the "advice and consent" power.

The American federal constitutional republic is and has been the most successful form of government ever formed.Â Unlike some of you Carboarders, I'm not ready to throw in the towel.Â

I think it's important for us to be clear what we say when we mean "blocking" a nominee.Â Democrats have voted down a Republican nominee in the past, sure (e.g., Robert Bork).Â But I'm not away of any prior Senate saying to any prior President that his nominee will not receive a vote, no matter who he nominates.Â To conflate the two as equal examples of "blocking" is to take what is truly something new, different, and worrisome and unfairly paint it with the "eh, both parties do it" brush.Â

Also, I don't think anyone here has said that the Senate lacks the authority to do what they've said they'd do.Â The text of the Constitution doesn't require a particular process by which the Senate gives advice and consent.Â But the past 200+ years of practice suggest that Senators themselves interpret the Constitution to require them to give a President's Supreme Court nominee a fair hearing and a vote.Â And yes, this decision reveals precisely how ideologically rigid parties can create cracks in our Constitutional order.Â If a President nominates a potential Justice, and the Senate never acts on that nomination because of ideological differences with the President or his/her party, what follows?Â What happens when a Senate simply decides to refuse confirmation to any nominee to any office because of ideological differences?Â Our only remedies are electoral ones, but if rigid partisanship continues to result in divided government, why would we expect things to change?Â

And while I love my country and admire the delicate balance the Constitution, as amended, attempted to strike, shouldn't we also be interested in discussing ways to improve upon what our Founders wrote down?Â Just because a particular form of government was the best democratic structure in the late 18th century doesn't mean that will hold true forever, particularly as other countries try their own experiments with parliamentary models, semi-presidential systems, parliamentary-presidential republics, and others.Â

It strikes me as hubris to claim that we perfected democracy in the 1780s and the issue never need arise again.Â Heck, even the Founders figured we'd need a constitutional convention every so often to adjust things to better fit the times.Â In every institution in which we are involved, be it a church, a workplace, or a family, don't we always try to make it better?Â Isn't it our job to do that?Â I think so, and I don't know why we'd treat our government differently.Â I don't know what the right model for our country is, but it hardly seems unpatriotic to recognize problems and wonder, if we can't fix those problems, what will become of our democracy.Â

The way I read stupac and others here is that they're (rightly) expressing concern over the path of our democracy, and (again, rightly) bemoaning that the same federal constitutional model was never intended to work with ideologically rigid parties, which our Founders saw as the greatest threat to our Constitution (Washington's farewell address is a good example of the thinking on the topic).Â I don't read them as throwing in the towel, I read them as being disheartened that the current status quo is subverting our Founders' intentions and that there is no obvious solution to make our elected officials less ideological.Â It disheartens me, too.Â

Re: OT: Supreme Court vacancy - pefloresjr - 02-16-2016

All of the supposed strict constructionist justices I've seen have used their legal analysis for a great deal of judicial activism.Â Originalists never stick solely to the text of the Constitution.Â Even Scalia called himself a "faint-hearted originalist" preferring to refer to himself as a textualist.Â He once said, "I am a textualist, I am an originalist.Â Not a nut."Â This, of course, gave him the freedom to go beyond the text and use social norms, historical context, and long-held moral beliefs to support his judicial activism.Â

Cheers,
Pete F.

Re: OT: Supreme Court vacancy - ColoradoTree - 02-16-2016

(02-16-2016, 01:41 PM)martyup link Wrote:That's my point.Â Strict constructionism does not require the Senate to approve a nominee.

A good argument for why strict constructionism is an incomplete philosophy.Â Not all questions are answered in the text of the Constitution, so when we have an impasse like this one, it requires people of good faith to work together to resolve it, as the Constitution envisions.Â If the Senate refused to fill numerous vacancies, we could be left with a Supreme Court that lacked a quorum to conduct business.Â The mere fact that the Constitution requires a Supreme Court, gives the President the power to nominate, and the Senate the power to confirm, is pretty compelling evidence that we are supposed to cooperate and compromise in order to ensure our Constitution survives.Â So, when one side says they won't participate in the process, the process necessarily breaks down.Â I see that as a problem, and a dangerous precedent to set.Â Do you?Â

Re: OT: Supreme Court vacancy - martyup - 02-16-2016

The precedent was set long ago.Â

Re: OT: Supreme Court vacancy - ColoradoTree - 02-16-2016

(02-16-2016, 01:41 PM)martyup link Wrote:That's my point.Â Strict constructionism does not require the Senate to approve a nominee.Â I've heard a number of leftists argue that the Constitution mandates approval of Obama's nominee.Â So they want to use an inaccurate strict interpretation of the Constitution to argue that the Senate is obligated to confirm any Obama nominee, despite the fact that the nominee will most assuredly be a judicial activist.

A few (OK, several) points:

1. You use terms like "leftist" and "judicial activist."Â Those are loaded terms with many meanings, and they suggest to me that you're not really interested in having a debate about ideas.Â As far as I'm aware, this is not a right-wing message board; it is a Stanford message board where bright, well-meaning people of all political stripes are welcome.Â

2.Â What do you mean by judicial activist?Â Do you agree with the definition that Chief Justice Roberts offered in his confirmation hearings, which is a judge inclined to give excessive scrutiny to and ultimately overturn laws passed by Congress and signed by the President?Â If so, then so-called "strict constructionists" have a pretty strong activist streak of their own, as the Voting Rights Act, Bipartisan Campaign Finance Reform Act, the Violence Against Women Act, and the Gun-Free School Zones Act of 1990 would attest.Â If you instead mean any judge who recognizes Substantive Due Process, a right to privacy (which underpins our right to medical privacy and the right of women to have abortions), or a belief that the Constitution is a living document and its interpretation can and should change depending on the time in which it is interpreted, then yes, any Democratic nominee (and most past Republican nominees) would be judicial activists by that definition.Â

3.Â Of course the Senate isn't obliged to confirm any nominee the President offers.Â And as someone who I'm sure fits your definition of a "leftist"--I assume all Democrats fit the bill?--I can say that I haven't heard any other Democrat say that the Senate is required to confirm the first nominee.Â What I think is true is that the Senate should feel bound by 200+ years of precedent to at least consider the nominee, hold hearings, and give the nominee a vote.Â And yes, eventually confirm some nominee.Â

4. In addition, senior Senators on Judiciary should take the "advice" part of "advice and consent" seriously and, as Orrin Hatch and others have done in the past, suggest nominees that, while being closer to the President's philosophy than the Senate's, would be less objectionable than others.Â

5. My problem here is that in the past, Presidents have been able to submit nominees that ultimately get through the Senate.Â Bork's rejection (again, after hearings and a vote) followed by Kennedy's unanimous approval is an example of the process working, where the Senate exercises its prerogative not to confirm a particular nominee in order to help ensure that a more moderate nominee is proposed.Â If the President nominated an outspoken liberal here and the Senate rejected him/her but later confirmed a more moderate nominee, I wouldn't complain, as that's what should probably happen with divided government.Â

6.Â If the Senate refuses to approve any nominee, then wouldn't you agree the system is breaking down and not functioning as the Founders intended?Â Refusal to confirm a nominee may not violate any express language in the Constitution, but neither does it make such a move consistent with the Constitutional order.Â If the Senate follows through with its threat to not consider any Obama nominee, then in my mind, they haven't expressly violated the Constitution, but they have subverted it.Â