SCOTUS-Watch: It's Gorsuch!

[The_Doctor]

Prediction: bland right winger becomes nominee. I'm betting Diane Sykes.

[The_Doctor]

Gorsuch seems a quality nominee I can support. It would be a good choice.

[The_Doctor]

There's no obvious about Roe being history. There's four decades of precedent behind Roe, Roe is popular, and the Court wouldn't willingly toss it without careful consideration. The blue states would need to retain the right to have abortion legal within their borders while red states would be allowed to ban it. The most likely scenario is that the 20 week ban is upheld, the whole gamut of abortion restrictions upheld, but abortion within the first 10-15 weeks remain on the books as a legal procedure.

Remember, any restriction to Roe that makes it difficult for white women (a core constituency in the GOP) gets political backlash that threatens the GOP's majority. So, Roe will remain legal in some contexts and within the first couple of weeks, no matter what.  

And gay marriage would not be rolled back. It took 40 years for abortion restrictions to become part of the legal and political landscape; gay marriage is a new right and it has wide and popular backing within the public. The public isn't about to go back to the times of gay marriage being banned in Alabama. That might not be a bad decision but honestly, the popular will to keep gay marriage legal will ensure that Obergefell remains legal.

The justices wouldn't overturn BOTH Roe and gay marriage. That just hands the Left huge ammunition and a bazooka to blow up the Right with impunity and galvanizes the Democratic base while depressing elements of the GOP base. Justices don't like writing opinions that could be overturned by the next election. They'll be more circumspect. Roe will remain partially legal and definitely legal up to the first 20 weeks while gay marriage remains legal.

[The_Doctor]

5 anti-abortion justices will not uphold a heartbeat bill that guts Roe at 6 weeks. They'll uphold state restrictions on abortion clinics, and the onerous regulations about the clinics, the specifics of running one, blah blah blah. But no.

Essentially, blue states will be allowed to have free rein on abortions up to the third trimester (where it's illegal federally anyway). Red states will keep the procedure heavily restricted as white women within the red states take plane/train trips to their sister in law or cousins or whatever to have an abortion in the blue states.

A blanket ban is just a massive political nightmare for the GOP and the conservative justices know it. They know that they can't get away with that level of restriction.

[The_Doctor]

I maintain Blue Atlasia's hysteria over the conservative ideology of the nominees is ridiculous. The Court will be conservative as long as the country remains conservative; if the country moves left, the Court will do the same.

The hand wringing by the Right over Souter and all that ignores a crucial fact...the Court tracks the mood of the country pretty well. Wherever the country goes, the Court will do so.

[The_Doctor]

Republicans never filibustered a nominee (and at least Sotomajor would habe been worth it!) so why keeping it? Eventually, they always cave if they are in the minority...

For the record, the filibuster needs to go and be replaced with a talking filibuster. The Senate has a lot of things that slow down legislation already but essentially the Senate wouldn't become the House if the filibuster went. It has a lot of other things that make it still a "slowing down" gear of government.

[The_Doctor]

I like Gorsuch; I prefer conservative constructionists on the Court who will limit Roe and be generally pro-business. But I don't like the Muslim ban EO and I don't like how the Garland process played out. So I'd vote yes to filibuster but I'd also vote yes on final confirmation.

[The_Doctor]

I argue the Courts have been politicized too long. But then again, we started the road to hell with the Democratic Party. The New Dealers started with trying to swing the Court to the Left, and it should be no shock the Reaganites began to value the Courts.

But that's all water under the bridge compared to 2016.

But Merrick Garland, to me, represented a nuclear option in that a vacancy came up in February 2016 and was not filled until February 2017. While Scalia's death was highly unfortunate, the partisan reasoning to leave a Court seat open for a full year stretches political norms past their breaking point. If this is the rationale - and the fig leaf of it being an election year being exactly that - then why shouldn't an opposition party in the majority hold up a Court appointment for 2 years? 3 years? What if a Republican President had a Democratic Senate and a court vacancy occurred?

There's a stretching of political norms and there's a breaking point. Garland was a breaking point. The President nominated him. We have a duty to have a fully staffed Court. The postponing of a Court vote in the name of partisan control of the Court was in a sense going beyond mere politics and validated the "anything goes."

Robert Bork was rejected, yes. I don't like it too much but the Senate fulfilled their Constitutional duty to "advise and consent." They looked at the nomination and they rejected it. Plain and simple. Senators are not required to rubber stamp a Court nominee. They're required to use their judgment as elected representatives to evaluate nominees and give them an up and down vote. Had McConnell said "we'll give Garland an up and down vote," and they failed him, I would have been happy. Instead, the Senate refused to even give him a courtesy hearing and held the seat open for a year.

I admit, I cheered this strategy a year ago as a partisan Republican. Since then, seeing the partisan gyre that has widened with Donald Trump's election and the "anything goes" mentality of the Republican Party (and now, the corresponding response from the Democratic Party, who rightfully believe that they have to respond in kind to stay viable) has made me reevaluate how far we go to break political norms. They may not be Constitutional, or whatnot, but they undergird how we function as a republic.

Indeed, Donald Trump was elected on that basis - that anything goes, and that political norms no longer matter in the name of "winning." The name of the game is to win, even if we stop being a republic in the process and our political divisions become so intense and bitter that like Rome, we require a monarch to rule us. This is exactly - I know it's cliched - what happened in ancient Rome. Norms were slowly stripped away as partisan factionalism intensified, ending in Augustus' rule.

Returning to my original point, now that the fig leaf has been used, now every Senate majority can ruthlessly stop an opposition president by holding open an Court seat for as long as they want - without consequences. That precedent has now been set - and the Court's balance is now considered fair game and no political norms now govern how we fill Supreme Court nominations.

We've crossed a Rubicon and unfortunately, to restore it, we're going to need one party to decisively defeat the other party and restore the political norms that make this republic functional.

Trump should have bucked his base, and risked his presidency to nominate Garland in the name of restoring political norms. That he didn't is understandable but it shows that our system's norms are broken and we need to address that.

[The_Doctor]

I argue the Courts have been politicized too long. But then again, we started the road to hell with the Democratic Party. The New Dealers started with trying to swing the Court to the Left, and it should be no shock the Reaganites began to value the Courts.

But that's all water under the bridge compared to 2016.

But Merrick Garland, to me, represented a nuclear option in that a vacancy came up in February 2016 and was not filled until February 2017. While Scalia's death was highly unfortunate, the partisan reasoning to leave a Court seat open for a full year stretches political norms past their breaking point. If this is the rationale - and the fig leaf of it being an election year being exactly that - then why shouldn't an opposition party in the majority hold up a Court appointment for 2 years? 3 years? What if a Republican President had a Democratic Senate and a court vacancy occurred?

There's a stretching of political norms and there's a breaking point. Garland was a breaking point. The President nominated him. We have a duty to have a fully staffed Court. The postponing of a Court vote in the name of partisan control of the Court was in a sense going beyond mere politics and validated the "anything goes."

Robert Bork was rejected, yes. I don't like it too much but the Senate fulfilled their Constitutional duty to "advise and consent." They looked at the nomination and they rejected it. Plain and simple. Senators are not required to rubber stamp a Court nominee. They're required to use their judgment as elected representatives to evaluate nominees and give them an up and down vote. Had McConnell said "we'll give Garland an up and down vote," and they failed him, I would have been happy. Instead, the Senate refused to even give him a courtesy hearing and held the seat open for a year.

I admit, I cheered this strategy a year ago as a partisan Republican. Since then, seeing the partisan gyre that has widened with Donald Trump's election and the "anything goes" mentality of the Republican Party (and now, the corresponding response from the Democratic Party, who rightfully believe that they have to respond in kind to stay viable) has made me reevaluate how far we go to break political norms. They may not be Constitutional, or whatnot, but they undergird how we function as a republic.

Indeed, Donald Trump was elected on that basis - that anything goes, and that political norms no longer matter in the name of "winning." The name of the game is to win, even if we stop being a republic in the process and our political divisions become so intense and bitter that like Rome, we require a monarch to rule us. This is exactly - I know it's cliched - what happened in ancient Rome. Norms were slowly stripped away as partisan factionalism intensified, ending in Augustus' rule.

Returning to my original point, now that the fig leaf has been used, now every Senate majority can ruthlessly stop an opposition president by holding open an Court seat for as long as they want - without consequences. That precedent has now been set - and the Court's balance is now considered fair game and no political norms now govern how we fill Supreme Court nominations.

We've crossed a Rubicon and unfortunately, to restore it, we're going to need one party to decisively defeat the other party and restore the political norms that make this republic functional.

Trump should have bucked his base, and risked his presidency to nominate Garland in the name of restoring political norms. That he didn't is understandable but it shows that our system's norms are broken and we need to address that.

I fully admit that, had Hillary Clinton won and Republicans kept the Senate, I would have advocated to not confirm any judges and justices for the entire four years.  Ending abortion is too important for that!

Speaking as a pro-lifer, the republic matters vastly more than abortion.