Should a Democratic President add 2 more Justices on the Supreme Court?

[136or142]

Read the Biden quote again. He said Bush could still make a nomination if a Supreme Court vacancy occurred, but that the Senate should condider tabling the confirmation hearings until after the election.

Again, both parties are certainly guilty of engaging in those games over the years when it comes to the lower courts. But McConnell escalated that fight to the realm of SCOTUS nominations.

Biden emphatically said that Bush should "not -- and not -- name a nominee" and that "action on a Supreme Court nomination must be put off." He was very definitive.

Also, it is false that "McConnell escalated that fight to the realm of SCOTUS nominations." To the contrary, it is a fact that Democrats started the SCOTUS confirmation wars (and arguably the broader conflict over all judicial nominations) with their savaging of Reagan's highly qualified SCOTUS nominee Robert Bork in 1987. From Roll Call:

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This entire argument over Garland seems to revolve around bringing up old examples of Democrats saying things or occasionally blocking lower court nominees. The fact is, we never told a Republican president that they are not getting a supreme court seat and then actually did that. If Democrats wanted to, they could have stolen a ton of supreme court seats from Republicans from Eisenhower through GHWB. They controlled the Senate for the vast majority of that time, including for Kennedy and Thomas. But they did not do that. I think we should all be able to agree that Republicans would not even consider doing the same for Democrats, nor would they confirm the leftist version of Thomas either. No, they would close ranks and either vote against them or simply refuse to hold a hearing at all, for anyone. That is the best theory until proven otherwise.

Who cares if one party blocks a particular nominee. I could care less really if Republicans said no to an Obama pick but then allowed a confirmation on someone else. The Senate is allowed to do that and it still accepts the established order that presidents get to pick judges, within reason. Obviously they shouldn't be trying to force an older and/or conservative nominee, but to turn down a person isn't wrong - it's saying no to everyone that is.

-

This really boils down to a larger problem with conservatives in that they can't seem to accept that Democrats have a legitimate right to govern if they win elections. The story of lame duck power grabs, stealing judicial/supreme court picks like crazy and rampant obstruction shows a party that feels their concerns are the only ones that matter and that they are so important that they justify any and all tactics to achieve, which is an absolutely terrible way to try to run a country. At some point they are going to have to address this because the Democratic Party's base is getting increasingly more aggressive in its desire to shut out the GOP by whatever means necessary, because they feel they are constantly getting bamboozled by an ethically bankrupt opposition party, occupying countless Congressional/legislative districts rigged in their favor.

I don't know about everyone else, but I don't want a political system where two parties are absolutely ruthless in their political maneuvering and doing the things the GOP has been doing. It is sick, and the manifestation of a deeply unhealthy system.

Republicans also have a right to govern when they win elections, and liberals apparently can't accept that either. Democrats started the modern trend of attacking judicial nominees with their unprecedented assault on Robert Bork. So Democrats have, in fact, denied a duly-elected Republican president his preferred SCOTUS nominee.

Not to mention their ten filibusters of Bush judicial nominees, their attempted filibuster of Alito, and their opposition to Trump's judicial nominees.

As for Republicans confirming "the leftist version of Thomas," they did in fact allow hard-core liberal Ruth Bader Ginsburg to sail through with virtually no opposition. She was supported by 93% of Republicans and was confirmed 96-3. That was after 81% of Democrats opposed Clarence Thomas.

Robert Bork was a nut job.  Read his book Slouching Towards Gomorrah. 

[SteveRogers]

Read the Biden quote again. He said Bush could still make a nomination if a Supreme Court vacancy occurred, but that the Senate should condider tabling the confirmation hearings until after the election.

Again, both parties are certainly guilty of engaging in those games over the years when it comes to the lower courts. But McConnell escalated that fight to the realm of SCOTUS nominations.

Biden emphatically said that Bush should "not -- and not -- name a nominee" and that "action on a Supreme Court nomination must be put off." He was very definitive.

“As a result, it is my view that if a Supreme Court justice resigns tomorrow or within the next several weeks, or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors and not -- and not -- name a nominee until after the November election is completed. ...

It is my view that if the president goes the way of Presidents Fillmore and Johnson and presses an election year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over. ...”

Look, I don’t actually agree with Biden’s position on this, but he was in fact very clear that a Bush nominee still would’ve gotten a vote in the lame duck session after the election.

And what on Earth does Bork have to do with anything? Bork got a confirmation hearing, didn’t he? He got an up or down vote on the Senate floor, didn’t he? And did Reagan not still get to fill that vacancy with another nominee after Bork was shot down? Bork wasn’t entitled to the votes of any particular democratic senators. No nominee is entitled to confirmation. When there is divided government, compromise can and should take place, and of course the president shouldn’t necessarily get their first choice. None of that changes the fact that the idea of the Senate shirking its responsibility to consider a SCOTUS nominee altogether is abhorrent.

[Brittain33]

Bork was a nutjob and most importantly, Reagan got to appoint a conservative justice anyway.

[Virginiá]

Republicans also have a right to govern when they win elections, and liberals apparently can't accept that either. Democrats started the modern trend of attacking judicial nominees with their unprecedented assault on Robert Bork. So Democrats have, in fact, denied a duly-elected Republican president his preferred SCOTUS nominee.

Can't go back DataGuy. Between Trump and McConnell, the GOP has managed to make it impossible to justify compromising to the base. And that should not be an easy thing to do with Congressional Democrats. There's a reason the party is constantly harping on its leaders for seeking to compromise when the situation doesn't justify it. Hell, Trump probably could have gotten his wall already if he wasn't such an idiot about it.

What Brittain33 said. Bork is a bad example that keeps getting brought up. I even said that no one should hold it against a party for refusing to confirm a specific nominee so long as they confirm someone. Republicans still got a justice that voted with the conservative wing more often than not. That was the entire point of my post. If the Senate GOP wants to torch a liberal nominee, fine, it's not like I don't expect it already, but don't use it as a justification to steal seats.

So no, "in fact," Democrats have not denied a Republican a seat. Jesus, you are really reaching in just about every argument you make.

Not to mention their ten filibusters of Bush judicial nominees, their attempted filibuster of Alito, and their opposition to Trump's judicial nominees.

Oh right, the hundred seats that Republicans left open through slow-walking Obama nominees, and god knows how many seats Obama didn't even bother nominating someone for because Senators like Cruz refused to return blue slips for (and Democrats stupidly respected), or those that McConnell had made clear in 2015-2016 that he wanted to deliver the vast majority of them to a Republican president? Ten filibusters really kind of pales in comparison if you ask me. It's not like I don't expect the parties to be greedy about all of this, but good god, there is a difference between being greedy and shutting down almost the entire process for years for partisan gain.

No shortage of examples of tit-for-tat here. The difference here is that you're still getting your judges. It would make more sense if you were arguing about this when Democrats were actually blocking judges. And not just judges were wholly unqualified for office or had ethical/other problems like Farr.

As for Republicans confirming "the leftist version of Thomas," they did in fact allow hard-core liberal Ruth Bader Ginsburg to sail through with virtually no opposition. She was supported by 93% of Republicans and was confirmed 96-3. That was after 81% of Democrats opposed Clarence Thomas.

And you feel confident about that happening today?

[Slander and/or Libel]

Can we all take a step back to laugh at the absurdity of GOP partisans expecting us to believe that their tactical decisions are dictated by something one Democratic Senator said but didn’t do thirty years ago? At this rate if Democrats decide not to add seats to the court, in ten years the GOP is going to do it and point to the fact that people talked about it as justification. But really it’s that they wanted to do it anyway and we’re just looking for any justification, however flimsy.

[Virginiá]

Even the Federalist Society co-founder recommended court-packing already, and this was as Trump was filling dozens of seats held open under Obama (or stolen, whatever):

https://www.washingtonpost.com/opinions/conservatives-have-a-breathtaking-plan-for-trump-to-pack-the-courts/2017/11/21/b7ce90d4-ce43-11e7-9d3a-bcbe2af58c3a_story.html

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I don't really feel too bad about Democrats doing it because I don't believe for a second Republicans wouldn't if they could and if they felt it was necessary to protect their ability to achieve policy goals using the federal judiciary. What they've actually done so far isn't that far removed from expanding the courts.

[DataGuy]

Read the Biden quote again. He said Bush could still make a nomination if a Supreme Court vacancy occurred, but that the Senate should condider tabling the confirmation hearings until after the election.

Again, both parties are certainly guilty of engaging in those games over the years when it comes to the lower courts. But McConnell escalated that fight to the realm of SCOTUS nominations.

Biden emphatically said that Bush should "not -- and not -- name a nominee" and that "action on a Supreme Court nomination must be put off." He was very definitive.

“As a result, it is my view that if a Supreme Court justice resigns tomorrow or within the next several weeks, or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors and not -- and not -- name a nominee until after the November election is completed. ...

It is my view that if the president goes the way of Presidents Fillmore and Johnson and presses an election year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over. ...”

Look, I don’t actually agree with Biden’s position on this, but he was in fact very clear that a Bush nominee still would’ve gotten a vote in the lame duck session after the election.

And what on Earth does Bork have to do with anything? Bork got a confirmation hearing, didn’t he? He got an up or down vote on the Senate floor, didn’t he? And did Reagan not still get to fill that vacancy with another nominee after Bork was shot down? Bork wasn’t entitled to the votes of any particular democratic senators. No nominee is entitled to confirmation. When there is divided government, compromise can and should take place, and of course the president shouldn’t necessarily get their first choice. None of that changes the fact that the idea of the Senate shirking its responsibility to consider a SCOTUS nominee altogether is abhorrent.

We can talk about lame duck session hypotheticals, but as for concrete reality the fact remains that according to his own VP, Obama should not have nominated Garland period, at least not "until the election cycle was over." He clearly contradicted Biden's principle by making a nomination in March. It's really impossible to argue otherwise.

Any lame duck theatrics would have been pointless anyway. Consideration during a lame duck session is about as good as no consideration at all.

Any normal confirmation process almost certainly would not have been completed in time for the new Congress. The average wait time is nearly 50 days for a hearing and about 70 days for a confirmation vote. There simply would not have been enough time to give a nominee due consideration, especially when you factor in the holiday recesses and the fact that no lawmakers really care about serious business during lame duck sessions. They just want to get home. Biden no doubt understood the emptiness of any promise for a lame duck hearing. With the 1992 election turning out as it did, the Democrats would not have confirmed a Bush nominee anyway when they could have their own nominee in just two months.

And Chuck Schumer having said that "we should not confirm any Bush nominee to the Supreme Court," the Republicans hardly invented the idea of "the Senate shirking its responsibility to consider a SCOTUS nominee." They just had the first opportunity to actually apply it. Words are not without consequence.

Republicans also have a right to govern when they win elections, and liberals apparently can't accept that either. Democrats started the modern trend of attacking judicial nominees with their unprecedented assault on Robert Bork. So Democrats have, in fact, denied a duly-elected Republican president his preferred SCOTUS nominee.

Can't go back DataGuy. Between Trump and McConnell, the GOP has managed to make it impossible to justify compromising to the base. And that should not be an easy thing to do with Congressional Democrats. There's a reason the party is constantly harping on its leaders for seeking to compromise when the situation doesn't justify it. Hell, Trump probably could have gotten his wall already if he wasn't such an idiot about it.

What Brittain33 said. Bork is a bad example that keeps getting brought up. I even said that no one should hold it against a party for refusing to confirm a specific nominee so long as they confirm someone. Republicans still got a justice that voted with the conservative wing more often than not. That was the entire point of my post. If the Senate GOP wants to torch a liberal nominee, fine, it's not like I don't expect it already, but don't use it as a justification to steal seats.

So no, "in fact," Democrats have not denied a Republican a seat. Jesus, you are really reaching in just about every argument you make.

Not to mention their ten filibusters of Bush judicial nominees, their attempted filibuster of Alito, and their opposition to Trump's judicial nominees.

Oh right, the hundred seats that Republicans left open through slow-walking Obama nominees, and god knows how many seats Obama didn't even bother nominating someone for because Senators like Cruz refused to return blue slips for (and Democrats stupidly respected), or those that McConnell had made clear in 2015-2016 that he wanted to deliver the vast majority of them to a Republican president? Ten filibusters really kind of pales in comparison if you ask me. It's not like I don't expect the parties to be greedy about all of this, but good god, there is a difference between being greedy and shutting down almost the entire process for years for partisan gain.

No shortage of examples of tit-for-tat here. The difference here is that you're still getting your judges. It would make more sense if you were arguing about this when Democrats were actually blocking judges. And not just judges were wholly unqualified for office or had ethical/other problems like Farr.

As for Republicans confirming "the leftist version of Thomas," they did in fact allow hard-core liberal Ruth Bader Ginsburg to sail through with virtually no opposition. She was supported by 93% of Republicans and was confirmed 96-3. That was after 81% of Democrats opposed Clarence Thomas.

And you feel confident about that happening today?

Indeed, there is no going back. The vicious assault on Bork has poisoned judicial politics for the past 30 years and will continue to do so.

The point regarding Bork has been completely missed as usual. What the Bork episode disproves is the lie that Republicans somehow started the partisan polarization over judicial nominees. Bitter confirmation wars were uncommon before the Bork episode but became commonplace afterwards:

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To my knowledge, Roll Call is not known for its right-wing bias.

You can hurl epithets at Bork all you want, but Reagan had just as much of an electoral mandate to nominate the strongly conservative Bork as Bill Clinton had to nominate the strongly liberal Ginsburg. The difference is that Republicans were civil and decent about the latter. And the same "well-qualified" talking point that Democrats used for Garland was just as applicable to Bork. Intellectually brilliant, he worked as solicitor general, attorney general, D.C. Circuit judge, and received the highest rating from the ABA. Democrats want their nominees evaluated solely on the basis of "qualifications," while ignoring the qualifications of Republican nominees and savaging them for thinking in ways they don't like (often for grossly exaggerated alleged beliefs that fall way short of materializing on the Court, like David Souter being an existential threat to the very lives of women). When Republicans do the same, they are being unfair or intolerant.

I have, "in fact," given examples of Democrats actually blocking judges. The first instance under Bush was Miguel Estrada, a highly qualified Honduran immigrant who was aggressively opposed by Democrats and slandered as "especially dangerous, because ... he is Latino." In total, there were cloture votes required on about two dozen Bush judicial nominees. Chuck Schumer was shamelessly proud of it and openly declared, "Yes, we are blocking judges by filibuster." I really do not have to prove that Democrats "actually blocked judges." Schumer did it for me in one sentence.

Democrats feel entitled to originate aggressive tactics and yet do not expect any reaction from the other side. They launched an unprecedented war against a Reagan SCOTUS nominee, outright refused to consider Bush 41's nominee to the second-highest court in the land, announced their intention to refuse consideration of any election season SCOTUS nominee, proudly filibustered and blocked many Bush 43 nominees, and declared in 2007 that they would not consider any further SCOTUS nominees.

And then, Democrats were outraged whenever Republicans went a step further, took their words literally, or used their own tactics and strategies more effectively.

Democrats attacked Republican SCOTUS nominees before Republicans attacked Democratic SCOTUS nominees. Democrats filibustered Bush nominees, and did so proudly, before Republicans filibustered Obama nominees. Democrats outright refused to consider a nominee to the second-highest court in the land before Republicans did the same for the highest court in the land. What really matters here is not specific numerical counts but rather the principle. Whenever you create these monsters in the first place, you open the floodgates to escalation and have no moral standing to object.

And in any case, the numbers themselves do not indicate any disproportionate failure rate for Democratic nominees. They show that 78% of Bush 41 nominees, 85% of Clinton nominees, 86% of Bush 43 nominees, and 83% of Obama nominees were confirmed. Obama confirmed 71% of his appeals court nominees while Bush 43 confirmed 67% of the same. Recent Democratic presidents, Obama included, have done no worse and in fact might have done slightly better in getting their nominees ultimately confirmed.

Can we all take a step back to laugh at the absurdity of GOP partisans expecting us to believe that their tactical decisions are dictated by something one Democratic Senator said but didn’t do thirty years ago? At this rate if Democrats decide not to add seats to the court, in ten years the GOP is going to do it and point to the fact that people talked about it as justification. But really it’s that they wanted to do it anyway and we’re just looking for any justification, however flimsy.

Even the Federalist Society co-founder recommended court-packing already, and this was as Trump was filling dozens of seats held open under Obama (or stolen, whatever):

https://www.washingtonpost.com/opinions/conservatives-have-a-breathtaking-plan-for-trump-to-pack-the-courts/2017/11/21/b7ce90d4-ce43-11e7-9d3a-bcbe2af58c3a_story.html

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I don't really feel too bad about Democrats doing it because I don't believe for a second Republicans wouldn't if they could and if they felt it was necessary to protect their ability to achieve policy goals using the federal judiciary. What they've actually done so far isn't that far removed from expanding the courts.

Republicans have had unified control of government for two years and there was never a peep from real lawmakers about expanding the size of any court. Even though technically, they could have. Nor have they attempted it the previous times they had unified control.

Throughout American history, there has been only one president who actually attempted to pack the Supreme Court (he called it "reform," but everyone saw right through it), and it was the Democrat FDR. By the way, it did not go well.

[Slander and/or Libel]

That’s a whole lot of words to try to argue why the behavior Republicans gleefully engage in is actually bad.

[NYSforKennedy2024]

Justice Ocasio-Cortez and Justice Avenatti sound good to me.

[7,052,770]

unprecedented assault on Robert Bork

https://en.wikipedia.org/wiki/Unsuccessful_nominations_to_the_Supreme_Court_of_the_United_States

Eisenhower, LBJ, and Nixon all had nominees that were rejected for their "extreme" views just like Bork was.

[Landslide Lyndon]

unprecedented assault on Robert Bork

https://en.wikipedia.org/wiki/Unsuccessful_nominations_to_the_Supreme_Court_of_the_United_States

Eisenhower, LBJ, and Nixon all had nominees that were rejected for their "extreme" views just like Bork was.

Reality has a liberal bias.
As always.

[Alabama_Indy10]

Justice Ocasio-Cortez and Justice Avenatti sound good to me.

You may need to get your ears checked then.

[Virginiá]

Honestly I'm not going to keep arguing with someone who thinks the fact that a batsh**t crazy conservative nominee from the 80s was shot down is terrible and deserves a never-ending cycle of retribution (despite Reagan still getting to fill the seat). No one is really arguing that the Senate must confirm the president's first pick every time afaik. If the president's picks are never supposed to be rejected, what is the point of Senate confirmation? The unacceptable part is holding seats open until your party gets to fill them.

I'm not going to continue trading walls of text around this since there isn't much more to be discussed. Both sides have contributed to this fight, but Republicans have constantly escalated in dramatic fashions and used really poor excuses to justify it ("""Biden Rule"""? lol). End of story. Believe whatever you want.

[Slander and/or Libel]

Honestly I'm not going to keep arguing with someone who thinks the fact that a batsh**t crazy conservative nominee from the 80s was shot down is terrible and deserves a never-ending cycle of retribution (despite Reagan still getting to fill the seat). No one is really arguing that the Senate must confirm the president's first pick every time afaik. If the president's picks are never supposed to be rejected, what is the point of Senate confirmation? The unacceptable part is holding seats open until your party gets to fill them.

I'm not going to continue trading walls of text around this since there isn't much more to be discussed. Both sides have contributed to this fight, but Republicans have constantly escalated in dramatic fashions and used really poor excuses to justify it ("""Biden Rule"""? lol). End of story. I've had this argument enough that I don't care to continue. Believe whatever you want.

It’s really stunning how disingenuous it all is. It takes a special kind of cognitive dissonance to claim the other side is bad for flirting with, but not doing, the stuff that your side does gleefully.

[Vincent]

Honestly I'm not going to keep arguing with someone who thinks the fact that a batsh**t crazy conservative nominee from the 80s was shot down is terrible and deserves a never-ending cycle of retribution (despite Reagan still getting to fill the seat). No one is really arguing that the Senate must confirm the president's first pick every time afaik. If the president's picks are never supposed to be rejected, what is the point of Senate confirmation? The unacceptable part is holding seats open until your party gets to fill them.

I'm not going to continue trading walls of text around this since there isn't much more to be discussed. Both sides have contributed to this fight, but Republicans have constantly escalated in dramatic fashions and used really poor excuses to justify it ("""Biden Rule"""? lol). End of story. I've had this argument enough that I don't care to continue. Believe whatever you want.

It’s really stunning how disingenuous it all is. It takes a special kind of cognitive dissonance to claim the other side is bad for flirting with, but not doing, the stuff that your side does gleefully.

I'm curious. Is there also a "Burr rule" where the opposing party just never confirms a Supreme Court Justice?

“If Hillary becomes president, I’m going to do everything I can do to make sure that four years from now, we’re still going to have an opening on the Supreme Court" - Sen. Richard Burr

https://www.journalnow.com/news/elections/local/sen-richard-burr-says-on-what-basis-he-would-reject/article_377f530a-63fb-5365-aff3-b939e57f30c6.html

[Vincent]

unprecedented assault on Robert Bork

https://en.wikipedia.org/wiki/Unsuccessful_nominations_to_the_Supreme_Court_of_the_United_States

Eisenhower, LBJ, and Nixon all had nominees that were rejected for their "extreme" views just like Bork was.

Seriously, this didn't begin in 1987. Case in point would be Strom Thurmond's pornographic film festival to attack Abe Fortas's free speech rulings.

[Virginiá]

Seriously, this didn't begin in 1987. Case in point would be Strom Thurmond's pornographic film festival to attack Abe Fortas's free speech rulings.

I'd go further and say that none of these should have ever been considered the "start" of anything. What is wrong with the Senate turning down a nominee? Our system is literally set up for this. The point Republicans can't seem to grasp is that the Senate doesn't exist to use as a weapon to starve the judiciary until they win the presidency and can make picks.

Until there is actual reform, there needs to be an agreement that whoever wins the presidency gets to pick judges, within reason (barring nutcases and other unqualified people, cronies, etc). But they are obligated to confirm someone in the end. Anything else is bound to end badly, and with court-packing become a mainstream idea in the Democratic Party, it should be obvious why. People who are constantly getting screwed bigly are eventually going to react.

[Vincent]

To give a direct answer to the original question: No, adding justices to avenge a "stolen" pick would not be reasonable. However, this could change depending on how the Republican majority on the Supreme Court uses their authority. The Court depends on credibility. It can survive swinging somewhat to the left or the right.  However, it does not have complete unchecked authority. Something like reinstating the Lochner decision, effective ruling the constitution mandates a far right economic ideology, should be resisted. Unfortunately, it is not uncommon to find conservatives who feel the constitution mandates their political ideology.

[No War, but the War on Christmas]

Mitch Mcconnell's Merrick Garland gambit was every much a usurpation of the judicial branch as Democrat's adding two more justices to the Supreme Court would be. So at this point, the only real debate to be had is whether we should stoop as low as Republicans have at chipping away at our Republic.

[wesmoorenerd]

I'm going to be honest, I'm incredibly disturbed by all of the Democratic support for such a proposal here, and I say that was one of the more hackish members of this forum. We've been through this, seventy or eighty years ago, and it backfired so hard that we haven't tried it since. The optics are so remarkably bad and the institutional change is so remarkably unstable. Comparison to the blocking of nominees is fallacious and ignores serious differences in the mechanics of the process and public opinion.

[MarkD]

Robert Bork was a nut job.  Read his book Slouching Towards Gomorrah. 

Have YOU read The Tempting of America? The author of that book was not a nutjob. It's possible that Bork was writing better when he wrote Tempting compared to when he wrote Slouching. I highly recommend The Tempting of America to everyone, no matter what their ideology.

[brucejoel99]

Justice Ocasio-Cortez and Justice Avenatti sound good to me.

You may need to get your ears checked then.

[Badger]

That’s a whole lot of words to try to argue why the behavior Republicans gleefully engage in is actually bad.

[Badger]

Robert Bork was a nut job.  Read his book Slouching Towards Gomorrah. 

Have YOU read The Tempting of America? The author of that book was not a nutjob. It's possible that Bork was writing better when he wrote Tempting compared to when he wrote Slouching. I highly recommend The Tempting of America to everyone, no matter what their ideology.

Poirtions, and yes, he was a nutjob.