Just a thought about the Post-Scalia Situation

by John Holbo on February 14, 2016

Obama needs to decide how best to respond to Republican threats of total scorched earth obstruction of all nominees, no matter who and what, because Obama is a radical madman.

What if he called their bluff about him being a radical madman? How might he do so?

What if Obama offered to take the unprecedented step of submitting to Senate Republicans a list of (oh, say) 10 possible, moderate, Democratic nominees for the Supreme Court? Take the 10 most unobjectionable, mildest mannered, middlest of the road names from the long list of likelies prepared against this day. Don’t let this be the time we reach for a liberal pick. Go as mild and bland as humanly possible, while of course emphasizing professional accomplishment.

The President understands Republicans are frustrated that this vacancy arose on his watch. He appreciates that they feel Scalia was one of their own, and they want him replaced with one of their own. But Presidents nominate Justices. It says so in the rules. It’s not reasonable to wait another whole year for the next President to nominate, then maybe a year more for the process to play out. The people’s business needs a new Justice in less than 22 months. But, in deference to Republican control of the Senate – and the divided state of the country – the President is offering Republicans the chance to vet his picks for the sort of radicalism they say they find intolerable. Let Republicans pick any 5 of these 10, certifying them as – on the face of it – mainstream likelies of the sort you might expect a moderate Democratic President to nominate. Then Obama, duly-elected President of the United States, shall pick 1 of the 5 as his nominee. And we move back to the Senate for actual confirmation hearings.

Either Republicans would agree to this or not.

If Senate Republicans refused this generous offer (practically a David Brooks fantasy of bipartisanship, no?) and persisted in refusing even to consider any Obama nominee, that would amount to encroachment on the executive’s enumerated powers. (What if Obama further offered to let Senate Democrats help draw up the list of 10 candidates, so it wasn’t just the tyrant Obama doing the picking?) I don’t know what would happen, but at least it would be clear any constitutional crisis wasn’t down to Obama’s radicalism.

If Republicans agreed, then somehow couldn’t find five acceptable names even on the most moderate of lists; or if they got as far as shooting down whomever Obama picked, even from their own pre-vetted five; then Obama could proceed down the list to the next name. This would eventually result either in a moderate Democratic confirmation or, more likely, public display of Republican radicalism, disarray and dysfunction, over the long course of an election year. Make Republicans fight with themselves about what a moderate Democrat Justice should look like, by just plain giving them the chance to pick between the most plain and moderate of options.

Democrats have a strong interest in getting any Democratic nominee confirmed to replace Scalia, rather than none. They ought to be entitled to such a confirmation, procedurally (though it stings Republicans.) That doesn’t mean they are going to get it (since it stings Republicans.) But Democrats should be able to force Republicans to make plain the dynamics of the situation, if Republicans really are going to stonewall. It has nothing to do with Obama. Democrats should not let Republicans suggest otherwise.

Let this be Crooked Timber’s open thread on the Supreme Court situation. (I obviously have my idle thoughts and speculations. Perhaps you do, too.)



RNB 02.14.16 at 5:29 pm

Just wrote on the other Scalia thread what you can hear on the news stations. I think Toobin was one of the first to raise it….
Word is that Obama may go with Sri Srinivasan in part because the Senate already approved him 97-0 for the United States Circuit Judge of the United States Court of Appeals for the District of Columbia. He’s probably not the change that Obama’s supporters were counting on Obama for. But Republican opposition to someone they once supported would make them look ridiculous, and could thus be a powerful factor in the elections. Have no idea how Srinivasan would rule on campaign finance, class action lawsuits, union dues. I would have to guess that he’s center-conservative.


b9n10nt 02.14.16 at 6:03 pm

The OP makes a lot of sense. The weakness with the strategy is that it relies too heavily on a foundation of moderates’ ability to punish R obstructionism. We know who the “moderates” are, but can they overcome the passions of the R voting base in the name of abstract notions of honor, restraint, and fairness? Certainly when it comes to legislation that concerns elites, the answer is yes. But SC politics? Methinks the R Senate is left to fend for itself against The Federalist Society and its co-belligerents in the age of Fox n Trump without much cover from Corporate Elites (the “moderates”, to be explicit).

If it were 2014 or if the Dems were more assured of victory in 2016, the more bipartisan play would be to be to throw some “left-wing” red meat to the Senate so that Senate R’s could build some tea-party cred (and Dems could get some gratifying testimony for themselves), then move on to nominate a runner-up centrist.


Lord 02.14.16 at 6:26 pm

I would think nominating a sacrificial centrist for Republicans to drool over and exhaust themselves defeating, followed by left centrist for the win.


Gareth Wilson 02.14.16 at 6:27 pm

An alternative strategy is to nominate someone that the Republicans will be as repulsive as possible in opposing. I don’t think there are any gay black Latino Muslim judges, but Mary Yu covers some of those.


Anderson 02.14.16 at 6:34 pm

It appears that the “moderate” option would by Srinivasan, former O’Connor clerk, confirmed 97-0 to CADC (including a vote from Cruz). First Asian-American justice, a bit to the right of Breyer. The GOP Senate could easily refuse to let him come to a vote, but the hypocrisy would be evident. “Sri” is the consensus moderate pick.

The more politically interesting pick is Watford, CA9, confirmed 61-34. Interesting because he’s black, and would thus give the GOP Senate the prospect of outraging the black Dem base and perhaps gearing up their turnout to 2008 levels. I’m presuming that the Dem candidates would solemnly pledge to resubmit Watford on their first day in the White House. Tom Goldstein at SCOTUSblog thinks Watford is the likely pick, on the basis I’ve set forth.

Or Obama could submit Srinivasan, who’d wait a couple months then politely withdraw with a statement that plainly the Senate’s not interested in letting his nom come to a vote, and then Obama could go “ok, I tried” and nominate Watford.


Gerald 02.14.16 at 6:38 pm

Barack H Obama is the TWICE elected POTUS …. and should do the job he was elected to do and nominate whom he believes is the best fit for the job!

These white male domestic terrorist aka GOP/Republican Senator McConnell and gang SHOULD do their job … and STOP this unprecedented obstruction of the US government.


Bruce Wilder 02.14.16 at 6:39 pm

3 Jews, 5 Catholics and then add a foreign-born Hindu — surely nothing there to rankle the evangelicals.


rootlesscosmo 02.14.16 at 6:39 pm

If Senate Republicans refused this generous offer (practically a David Brooks fantasy of bipartisanship, no?) and persisted in refusing even to consider any Obama nominee, that would amount to encroachment on the executive’s enumerated powers. (What if Obama further offered to let Senate Democrats help draw up the list of 10 candidates, so it wasn’t just the tyrant Obama doing the picking?) I don’t know what would happen, but at least it would be clear any constitutional crisis wasn’t down to Obama’s radicalism.

But clear to whom? What purpose is served by setting up the Republicans to demonstrate their hypocrisy yet again, if it does them no political damage but on the contrary makes their fans admire them even more? Lani Guinier might very reasonably decline to walk point on such a risky mission, but she’d make a terrific Justice, and if Obama is going to lose this one, better he should lose it on behalf of someone who really counts.


Glen Tomkins 02.14.16 at 6:40 pm

Srinavasan is a presumed Republican. I don’t believe he publicly identifies with either party, but he clerked for O’Connor, and first served in the Dubya administration. While not affiliated with the Federalist Society, and therefore not in the same class as the four members of the Federalist Society bloc that runs the Court (whenever they can cajole Kennedy — or his clerks — into agreement), he is not even the mild inoffensive Democrat imagined in this scenario. He’s a Republican.

Srinavasan was nominated to his present place on the bench, US Court of Appeals for the District of Columbia, precisely because the state of play for Obama getting his nominees voted on by an R Senate has long since gotten to the point that the standard for them allowing a vote for even the second highest court that Srinavasan now sits on, is that they will only accept Republicans.

But this point has already been made more clearly by the prompt announcement by McConnell that he won’t let any Obama nominee be considered anyway. Perhaps your post came in under some sort of time-zone difference, and this proposal of yours was set down before McConnell made that announcement, but at this point, the Rs have already accepted whatever electoral backlash that might arise from simply refusing to allow a vote on whomever Obama might send them for confirmation.

The dynamics of the situation are already plain. The Rs are, if anything, to be commended for just outright saying that they will not play their part in governing by voting on Obama’s nominee. They could have made no such admission, but denied Obama a nominee in practice by delay, avoiding any categorical assertion that a sitting president is to be denied a prerogative of that office.

Sure, the Ds should make an electoral issue out of R abuse of power, and sure, that abuse is now categorical because of McConnell’s statement. But if the Ds are to do that, we have much the stronger examples of R’s using the annual appropriations bills and the debt ceiling as hostages.

So far the D approach to this sort of club law has been to complain about R mookishness at the time of the crisis, then do what has to be done to avoid the train wreck threatened by the Rs with minimal concessions (or not so minimal in the case of the sequester), but then to fail to follow-up on the opening presented by the crisis created by the Rs to propose reforms that would keep them from hostage-taking in the future.

The Ds should propose that appropriations would simply rise by a cost-of-living factor in any year in which appropriations bills aren’t passed, and that the debt ceiling simply be eliminated. They should propose that, at least for SCOTUS, a nominee has to get a confirmation vote within 60 days of nomination, and if that one is refused, the next nominee gets 30 days, and the next 15, the next 7 days, and after that 48 hours. Perhaps the list idea gets in here as the provision that the president submits a rank-ordered list of twenty, so that vetting on all of them can get started immediately.

The way you put pressure on the other party is to propose an actual legal change, and run the next election on their reaction to your proposal. Propose your list idea as a law that will govern all future SCOTUS nominations, and then it acquires some utility as a political cudgel. But as a one-off, it’s just a gimmick the other side has already gotten well past in the state of play.


Anderson 02.14.16 at 6:41 pm

Inexplicably I called Paul Watford “Gregory.”


RNB 02.14.16 at 6:43 pm

Ethnic identity aside, I would like to see Obama nominate Goodwin Liu over Srinivasan.
Srinivasan clerked for Republicans after Stanford Law School. Has defended Skilling and Exxon against very troubling charges. Does Obama end up giving the big-donor Republicans what the Republican Party itself cannot deliver? Srinivasan would make hostile Republican Senators look like fools in the confirmation hearings. So maybe the Republicans back off and tell the American people that it was their threatened intransigence that kept Obama from nominating a progressive and that is why the electorate should vote Republican.


Cranky Observer 02.14.16 at 6:43 pm

= = = Word is that Obama may go with Sri Srinivasan in part because the Senate already approved him 97-0 for the United States Circuit Judge of the United States Court of Appeals for the District of Columbia. He’s probably not the change that Obama’s supporters were counting on Obama for. But Republican opposition to someone they once supported would make them look ridiculous, and could thus be a powerful factor in the elections. Have no idea how Srinivasan would rule on campaign finance, class action lawsuits, union dues. I would have to guess that he’s center-conservative. = = =

So… Democratic Presidents are limited to nominated ‘center-conservative’ Justices while Republicans are free to nominate and force through Scalias, Roberts’, and other hard right Federalist Society believers. But of course there is no such thing as an Overton Window – Scott Lemeuix told me so. That’ll turn out well in the long run, both for the nation and the Democratic Party.


RNB 02.14.16 at 6:48 pm

OK strike 10. I just remembered how much I liked Liu and forgot about the Republican opposition he has already faced. Perhaps Obama was trying to put Liu in a position that he could be appointed to the Supreme Court, but the Republicans have already destroyed that option.


Anderson 02.14.16 at 6:48 pm

Myself, I prefer Watford to Srinivasan, for the reasons others have set forth.

But we are all quite familiar with Obama’s desire to Appear Reasonable.

And frankly, the GOP’s line in the sand may make Sri’s a “safe” nomination because it will crash & burn. Their senators who are up for re-election in 2016 probably can’t afford to confirm an Obama nominee. (I really need to look at a Senate election map.)


Ben Alpers 02.14.16 at 7:04 pm

I don’t like Srinivasan as a Justice, but he’d also potentially drive a wedge between Hillary Clinton and Bernie Sanders, perhaps a feature not a bug from Obama’s perspective,


RNB 02.14.16 at 7:22 pm

Obama probably sees it as his responsibility to make sure the vacancy is filled and will thus propose a nominee who has some chance of confirmation. He will put the sanctity and stability of the system above his politics. It was the people’s will after all to give the Republicans the majority in the Senate, and he will think that he has to respect this constraint in executing his responsibility to fill the Supreme Court. This rules out Watford in that he was almost not confirmed for a lesser position and Kamala Harris who would not be treated much better than Goodwin Liu. But the Republicans are not likely getting what their common voters want in terms of abortion and gun rights. So perhaps the Republican Senators fight this. I have no idea what the fall out will be.


PatinIowa 02.14.16 at 7:25 pm

The Republicans have already had their chance to weigh in. There are bunch of federal judges on the topmost bench who were approved unanimously or with more than 95 senators voting for them.

If I were Obama, I’d rank order those judges according to my own judicial standards. (Elections mean something remember?) Then I’d run through them in order, giving the Senate 90 days on each until the election.

If I were Hillary Clinton, I’d promise to nominate Obama if elected. In that case the racist will come howling into the open, and she wins in a walk–not only the African American and other minorities will flock to her, but suburban whites will recognize her as one of their own, unlike the spittle flecked yahoos on the right.

I don’t know what Bernie Sanders thinks of Obama’s judicial temperament.


Nathan 02.14.16 at 7:29 pm

I agree with Gareth. Find an impeccably qualified candidate that ticks as many of the boxes of gay, non-Christian, minority, and female. Then let the Republicans race further down their path of bigotry and racism. You want millenials to vote? Show how Republicans won’t stop until they have a Justice that will take away their reproductive and gay rights. Old white people are already voting. Use this amazing opportunity as motivation to get young people to.


Dr.S 02.14.16 at 7:51 pm

My reading of the electorate suggests that the Republicans have nothing to lose by refusing to confirm anybody until after the next election (and beyond?)


christian_h 02.14.16 at 7:56 pm

Obama’s instincts are pro-corporate, so he may well go with Srinivasan. But since we are making the ideal world, surely he should NOT follow the strategy laid out in the original post, since the bluff might be called and the “moderate” installed. Then again it is in the interests of both party leaderships to drag this out until after the elections – it’s such a good find raising opportunity, and it gives them a cudgel against the “extreme” candidates, so in all likelihood nothing will happen.


Andrew 02.14.16 at 8:48 pm

I might be disappointed to have Srinivasan replace RBG. But replacing Scalia? I’d take that in a New York minute.


geo 02.14.16 at 9:00 pm

RNB@15: It was the people’s will after all to give the Republicans the majority in the Senate

I wish people would stop saying that: http://www.vox.com/2015/1/3/7482635/senate-small-states/in/5654656


geo 02.14.16 at 9:01 pm

PS – Not to mention the voter-suppression.


Frank Wilhoit 02.14.16 at 9:12 pm

Also, too: not a Parliamentary system.


Molly 02.14.16 at 9:16 pm

I like the idea of nominating a black liberal, preferably a woman — someone who will protect women’s rights, someone who will protect voting rights. And when the voters — black, female, gerrymandered to a fair-thee-well — see yet again how the Republicans want to stiff them, then the Democratic candidate for President has another recent and powerful demonstration of what’s at stake.


squiregeek 02.14.16 at 9:21 pm

Since Congress is in recess, the president has the option of appointing anyone he wants. True, the appointment ends next year, but if the Republicans really intend to block an appointment this might suffice. It falls to us to elect a Democrat to the White House and tip the senate to the Democrats. It can be done.

The president’s calculus is between finding a way to get the senate to ‘advise and consent’ or go around them while hoping for a big win in the fall.


Anderson 02.14.16 at 10:08 pm

It should go without saying, but the BEST possible pick would be Belle. (No Constitutional req’t of a law degree.)


Steve Williams 02.14.16 at 10:22 pm

For Republicans, starting from a position of absolute denial in this game makes sense. It’s the logical opening move. But isn’t their hand a little weaker than it first appears?

The Democrats are likely to take the Senate in November. Not sure, but likely – they’re defending many fewer seats and have thus far gathered behind stronger candidates.

They may also win the Presidency – again, it’s probably a toss-up, but if Trump wins the nomination it becomes quite likely.

At some point this year, the Republicans might come to the conclusion that it’s better a centrist, or even mild conservative, candidate instead of a liberal one next year.


Placeholder 02.14.16 at 10:37 pm

So unless I’m mistaken, the Republican Senate has immediately and universally committed to:
1) Taking the longest supreme court vacancy of 120 days and hold out until the next election 340 days later.
2) On the hope that they retain their Senate majority of five after the election in which 24 Republicans are up against 10 Democrats.
3) And the hope they take the Presidency in a race in which their leading candidate is still Donald Trump.
4) and run on this?


Tabasco 02.14.16 at 10:43 pm

If Obama nominates someone who didn’t go to law school at either Harvard or Yale, then he really will be a radical madman. Could he do the unthinkable and nominate someone who went to Stanford or Columbia?

What will be really interesting is if there are two vacancies to fill. Clarence Thomas is probably making an appointment to see his cardiologist as I write.


oldster 02.14.16 at 10:53 pm

Nah, if Obama wants to be a radical madman, he should nominate himself, to begin serving after he ends his term in the WH.

Why not? Let them gnash their teeth.

(Well–he has said he doesn’t want it, so that’s a strike against it. But he might enjoy the spectacle nonetheless.)


TM 02.14.16 at 11:03 pm

16: Really nothing to lose? Republicans are unlikely to win the presidency and very likely to be weakened in the Senate. At the same time, Scalia’s death leaves the 3 remaining right wing justices powerless. It’s a lose-lose situation for the Republicans. Their best bet is probably to confirm a centrist now. Their opening gambit was foolish though and leaves them in a bind of their own making. That I think reflects their state of panic.


TM 02.14.16 at 11:14 pm

23: three others are octogenarian or close. How’s their state of health?


John Holbo 02.14.16 at 11:21 pm

“What purpose is served by setting up the Republicans to demonstrate their hypocrisy yet again”

Consider three options:

1) Get a more liberal/progressive candidate confirmed
2) Get the most moderate/blandest candidate confirmed.
3) Get no one confirmed.

The risk of 3, vs. 2, is so great, in a world in which the Republicans might control both the White House and Senate next year, that the preferability of 1 over 2 does not outweigh it. Once you have settled on the rational strategy of aiming for 2, doing nothing that might in any way increase the risk of 3, then you have to think, as well, about what else goes with 2. And the answer is: in a year in which Republicans will surely be campaigning on the horrors of the tyrant Obama’s judicial radicalism, making the most elaborate show of moderation ever is of some value. Not overwhelming value, no. Be it noted: the advantage is not just that it might win over the ever-dwindling, perhaps entirely mythical moderate swing voter bloc but that it might, to some degree divide Republicans against themselves.


Bruce Wilder 02.14.16 at 11:26 pm

“moderation” in the eye of the beholder, and who would that be?


P O'Neill 02.14.16 at 11:45 pm

If Ted Cruz had been less ambitious on the federal political scene, he’d be sitting in Texas as the ideal Supreme Court pick for President Ryan next year.


TM 02.14.16 at 11:58 pm

How will the current SC cases turn out with Scalia gone and not replaced? The right-wingers won’t be able to overturn even if Kennedy supports them. The liberals still need Kennedy to overturn. What does that mean in the specific cases?


TM 02.15.16 at 12:15 am

“The risk of 3, vs. 2, is so great, in a world in which the Republicans might control both the White House and Senate next year”

Otoh, a rational Republican, if that exists, must consider the risk that the next president will be to the left of Obama. Also, the Senate Democrats have the power to prevent a Republican nominee just like the Republicans have in the opposite case (it is very unlikely that any party will have 60 seats and the presidency). JH assumes that only the Reps can play the game of obstruction and the Dems won’t pay them back if the tables turn. Maybe that assumption is correct (after all, the Dems have in the past confirmed rabid right wing extremists to the SC, including Scalia) but it shouldn’t pass unexamined.


Lee A. Arnold 02.15.16 at 12:23 am

President Obama may NOT find a serious jurist who would want to be nominated in this environment. The process is already hell for nominees, and now it will be worse. You would be looking at 9 months of being a political punching-bag for some of the most insane people on the planet, short of the religious suicide bombers. No privacy, no peace.


Ben Alpers 02.15.16 at 12:34 am

120 days is not the longer Supreme Court vacancy. That’s the longest that it’s taken a single nomination to be resolved.

Lewis Powell retired on June 26, 1987. His seat was filled 210 days later when Kennedy was confirmed (following the rejection of Bork and the withdrawal of Douglas Ginsburg).


Bruce Wilder 02.15.16 at 12:48 am

TM @ 31 only the Reps can play the game of obstruction and the Dems won’t pay them back if the tables turn.

I thought that was a provision of the Constitution itself, like the requirement of 60 votes to approve a nominee and fixing the number of Justices at 9.


GW 02.15.16 at 1:04 am

Bruce Wilder @34 Confirmation only requires a simple majority. Getting to a vote, however, may require 60 for cloture under the rules of the Senate, not the Constitution. The number of justices is not fixed by the constitution, but by Congress. The initial judiciary set the membership at three, and it gradually rose to nine by 1869.


John Holbo 02.15.16 at 1:13 am

““moderation” in the eye of the beholder, and who would that be?”

In my proposal: Senate Republicans, plus the President.

Either the Republicans acknowledge that some Democrats are moderate and professionally accomplished – hence deserving of confirmation – or they don’t. If they accept the premise, fine. We’ll take whatever Dem they are willing to certify as moderate, hence acceptable. If they are simply unwilling to seat any non-Republican nominee on principle, then it would be good to be able to make that state of affairs clear. Republicans will prefer to say they are opposing Obama’s judicial radicalism. The advantage of my proposal is that Obama can, in effect, back out of it, letting Republicans decide among themselves with Dems are truly moderate enough to be qualified.

“JH assumes that only the Reps can play the game of obstruction and the Dems won’t pay them back if the tables turn.”

No, I assume that Dems can play obstruction and my proposal is intended, in part, to stiffen Dem spines. I assume that Republicans will, in fact, stonewall any nominee until the election. It is perhaps not rational for them to do that, as a party – though it might be – but it is individually rational for each Republican not to be the one who breaks ranks and signals preparedness to compromise. The best way to stiffen Dem spines would be to show them the spectacle of a year of Republican obstruction not to Obama, but to the proposition that any Democrat whatsoever can be a qualified candidate for the Supreme Court of the United States, in principle. On the other hand, I do doubt Dem capacity to obstruct indefinitely if Republicans win the White House and hold the Senate. I believe the Supreme Court issue is serious enough that Republicans would go for the nuclear option, allowing them to confirm any nominee they wished with 51 votes. I doubt the Democrats are going to retake the Senate in 2016. And I think there is at least a 25% chance that Reps will take the White House. Faced with even a 25% chance of Republicans being able to confirm any nominee they wish, as of February, 2017, it is rational to try everything and anything to get some Dem confirmed in the meantime. Although I am doubtful that will happen. I think in the end it will come down to: who is President.

Also, we need to think of the likeliest scenario: Democratic President. Republican Senate. Suppose that’s the case. The Democratic President’s hand will be strengthened, in that situation, if the country has just been treated to an entire year during which Republicans have been unwilling to consider ANY Democratic nominee, on principle.

“President Obama may NOT find a serious jurist who would want to be nominated in this environment. The process is already hell for nominees, and now it will be worse.”

I realize under my proposal we would need more candidates. But I think the treatment of them would be marginally better. The preliminary vetting wouldn’t be so terrible, though it would be serious. But Republicans would make themselves ridiculous if they feigned outrage at the very sight of candidates they themselves had vetted and found to be, at first sight, plausible. They could still try to dig up surprise dirt. But some of the outrage theater would be harder to maintain.

My proposal is obviously something of a troll of Republicans. But it would also be a perfectly fine precedent, were it to be set. My proposal would be a fine norm for nominating all future Supreme Court justices, so there really is no risk in proposing it, I think. (Obviously the real reason there’s no risk is this is just a blog post. Oh well.)


peter ramus 02.15.16 at 1:27 am


…If this is indeed the case, the Senate is presently in the midst of a 10-day recess (not a pro forma session), and under Noel Canning, President Obama possesses the power to make a recess appointment to the Supreme Court until noon on February 22, when the Senate comes back in session.

&smdash;Glenn Reynolds


Tabasco 02.15.16 at 1:31 am

The Democratic President’s hand will be strengthened

Strangely, it is quite possible that President Sanders would have more chance of getting his nominee through the Republican senate than President Clinton.


Anderson 02.15.16 at 1:41 am

Robert Reich claims to have inside info it’s Sri.


John Holbo 02.15.16 at 1:47 am

“Perhaps your post came in under some sort of time-zone difference, and this proposal of yours was set down before McConnell made that announcement, but at this point, the Rs have already accepted whatever electoral backlash that might arise from simply refusing to allow a vote on whomever Obama might send them for confirmation.

The dynamics of the situation are already plain. The Rs are, if anything, to be commended for just outright saying that they will not play their part in governing by voting on Obama’s nominee.”

Just to be clear: my post was a direct response to the McConnell announcement. McConnell would like to frame this as a defensive reaction to Obama’s alleged radicalism and executive illegitimacy. But obviously it’s really aggressive opposition to any Democratic nominee, in principle. Obama would do well to make this clear.


Anderson 02.15.16 at 2:05 am

And Kelly Ayotte, what passes for a moderate Republican these days, gets on board w Cruz & McConnell.

I wonder if the WH is seeing the two-step plan like I am.


Lee A. Arnold 02.15.16 at 2:30 am

Steve Williams #28, I agree with everything you wrote, except that the only toss-up is if the GOP manages to nominate Kasich (who’s doing better in S. Carolina at this moment, but it may not be enough to place better than 4th there). Otherwise it looks to me like No Contest — Hillary wins against the rest of them fairly easily.

It strikes me that President Obama is likely to nominate a moderate-to-liberal Democrat for SCOTUS — or else make Hillary defend his conservative pick, and suffer the wrath of the Dem primary voters.

The Republican Senate will probably put a hold on whomever is nominated, in any case.

The 10-candidate proposal would probably be DOA to both White House & Senate. Too much work, takes spotlight away from Presidential races.


BenK 02.15.16 at 2:45 am

Obama could nominate Trump, or Cruz. That would make things interesting…


Bruce Wilder 02.15.16 at 3:12 am

GW @ 42 thanks for the info

that other thing — only the Reps can play the game of obstruction and the Dems won’t pay them back if the tables turn — that’s still in the Constitution, right?


Bruce Wilder 02.15.16 at 3:25 am

Instead of Obama nominating a conservative to replace Scalia thus serving the plutocracy, the Dems could just let the Reps be Reps without contrivance and if it proves unpopular, win the election, taking control of both Senate and White House.

Politicians are untrustworthy narrators of the dramas they put on teevee. More elaborate scripts do not serve to solve the problem of a government responsive only to the interests of the very wealthy and large business corporations.


Glen Tomkins 02.15.16 at 3:29 am

But the way it’s worked, at least since Gingrich was their Speaker, is that of course they are really aggressive in their opposition to the Ds. Obama doesn’t need to do anything to make that clear. Gingrich taught their side to always refer to our side as literally traitors. The bit of canned rhetoric that got Rubio in trouble for repeating a bit too robotically, was precisely this point, that Obama has acted purposefully to destroy America, and is not simply a reasonable person who simply espouses the wrong public policy.

But even if they toned down the rhetoric, and their point was simply that Obama supports the wrong public policy, they still should oppose him and our side quite aggressively. What’s at stake with public policy is so important that merely being wrong makes a life and death difference, and that on a mass scale. Calling our side traitors is over the top, as that is a capital crime. But saying that we’re bums who need throwing out of office, that should be completely unremarkable. We aren’t done any good with the electorate by complaining that the other side is being mean to us, is not cooperating with us.

And until they are able to throw us out completely, of course they should do everything the current rules allow to check those Ds still in office. They have a Senate majority, so they get to say that no D justice gets approved, just as we hold the presidency, so we have to nominate whoever goes to the Senate for approval. I only wish that while we had the Senate majority, or at least a filibuster minority, our side had refused to approve all five of the Federalist Society junta.

Just because some Ds persist in seeing US politics as if it were based on a bipartisan consensus, and if only we follow the imagined rules of that political system, and make clear that the Rs are behaving aggressively, the electorate will act like a responsible arbiters and punish the evil aggressors. I’m sure that there are swing voters who could be swayed by that sort of appeal, but it doesn’t seem to be a big demographic. Most of us accept that politics ain’t beanbag, and the other side is supposed to be aggressive. A bit more aggression from our side, please.

That said, if the bipartisan system has broken down, we definitely need to change how we do anything that depends on a bipartisan consensus. Our current system for financing the operations of our govt was set up during and just after WWII, during the New Deal consensus. As such, it gives any one part of the legislative trifecta the ability to take the operation of the govt hostage, should the bipartisan consensus break down. It has broken down, and our annual appropriations process has to be changed so that it no longer requires consensus to allow the govt to be funded.

The debt ceiling is obsolete. It did have some function as a control on govt spending, a century ago, before WWI, but was allowed to survive as long as it was only a sop to deficit scolds, letting them vent harmlessly whenever the ceiling was reached. It’s no longer harmless now that we have at least one party willing to use whatever tools lie to hand to get their way, so we need to just get rid of it.

SCOTUS is in a different category. We don’t need vacancies filled within any given time frame, should both parties play tit for tat judicial chicken and refuse to confirm anyone nominated by a president of the other party. We need the govt funded and the Treasury solvent all the time, but we don’t really need SCOTUS vacancies filled at all, ever. It is true that if we let SCOTUS acquire nine vacancies, that would just move the same problem of the politicized judiciary down to the appellate court level, and we wouldn’t be able to replace those justices either.

The problem is that we have let SCOTUS expand its jurisdiction without any check. We have reached a point of deference to the courts that SCOTUS could get away with pretending that any problem or conflict is within its jurisdiction. This is why the commentariat is in an uproar about this vacancy. The Scalia replacement will be more powerful than the president, because he or she will be the swing vote on what is practically an ennearchy.

The problem is that we have let the Court acquire too much political power. Neither party can let the other put anyone on a Court that we have let become an unchecked ennearchy.


Plarry 02.15.16 at 3:42 am

JH’s proposal seems fatally flawed to me because it assumes that either the Republicans will bargain fairly or will suffer if they don’t bargain fairly. I see no reason this assumption should be valid. I see no reason to trust the Republicans to bargain fairly in any negotiation, and therefore I think attempting to negotiate with them over a nomination is a waste of time. It is possible they could be pressured into voting.

I also think Obama feels less constrained by sanctity and stability of the system concerns and is potentially more concerned with his legacy, so I think he will nominate someone who it will be difficult to impugn but will establish his legacy in some way.

Finally, there is an “upside” as it were, of having the Republicans confirm no one. If the Supreme Court goes for over a year without 9th justice, it becomes more difficult for a party to scream about the necessity of a speedy hearing. That could potentially benefit the Democrats if they recapture the Senate but lose the presidency.


Fentex 02.15.16 at 3:44 am

I think Obama’s path is obvious. Find a respected jurist who is an apparent non-partisan and nominate them promptly.

The Republicans must accept them because they won’t want the prolonged battering obstructing will earn them from everyone who’s votes they hope to gain and the Democrats ambitions are served by any non-right leaning nominee.

It will be in Obama’s and the Republicans interests and acceptable to Democrats.

Otherwise the Republicans put themselves further in the hole for the Presidency and will watch a Democrat not only nominate a juror for this vacancy but likely two more.


John Holbo 02.15.16 at 3:49 am

“JH’s proposal seems fatally flawed to me because it assumes that either the Republicans will bargain fairly or will suffer if they don’t bargain fairly.”

I agree that assuming the Republicans would bargain fairly, or suffer if they didn’t, would be a fatal flaw. How does my proposal open the way for that? I thought I was doing my best to make willingness to bargain fairly a non-issue.


Bruce Wilder 02.15.16 at 3:52 am

Glen Tomkins @ 53:The debt ceiling is obsolete. . . . . It’s no longer harmless now that we have at least one party willing to use whatever tools lie to hand to get their way, so we need to just get rid of it.

I think you are missing the big picture. You take the drama as presented too seriously. You do not see American politics as a fiction presented to the public to excuse politicians from responsibly using their legal authority to exercise power they have alienated to corporate lobbyists. It is all a fog, an elaborate misdirection, so ordinary people have no idea what politics is about or who is being served. The Reps and Dems are so noisy because they do not want you to hear. They feed off each other, create excuses for their betrayals.


Plarry 02.15.16 at 3:57 am

@56: Republicans: Thank you for your list, we will consider it……. Time passes …… More Time passes …… Yet more time passes …… ” This list is not acceptible, can you give us more names”?

What has been gained – nothing. What has been lost: time until the election. Now the Senate can take it’s normal 3 months for hearings, plus a few extra, and we have a new president. Then they can just kill the nomination. The point being that there is no hard deadline that Obama can impose – like the debt ceiling, that will bring them to table in a reasonable manner. If Obama peremptorily nominates someone before they are finished “vetting” the list, then he is at fault, not them.


John Holbo 02.15.16 at 4:44 am

“Republicans: Thank you for your list, we will consider it……. Time passes …… More Time passes …… Yet more time passes …… ” This list is not acceptible, can you give us more names”?”

Oh that’s fairly easy, I think. When Obama submits the 10, he tells Republican they have 4 weeks to get back to him. Then, when they say that’s not enough time, he extends it to 6 weeks. He could even give them the opportunity to propose their own moderate, Democratic nominees, if they think he – Obama – left likelies off the list. ‘We are looking for Democratic judges, clerks for Democratically-appointed Justices – that sort of thing – not rock-ribbed Federalist society stalwarts.’ If they give him a list of Republican arch-conservatives anyway, he could politely send it back. ‘I said Democrats, not Republicans, moderates, not arch-conservatives.’ A list of Democrats is a list of Democrats. Or else it isn’t. It’s hard to spin that in ways that would cause the mainstream press to be all ‘opinions about shapes of the earth differ’. The advantage that Dems have in this situation is that, given the looming downside threat they are facing, they will – or should be – honestly happy even to get someone confirmed who is a just a whisker on the conservative side of the line. If the elections go fantastically in the Dem’s favor, this might mean having given away a golden opportunity in the new year. But I say the risk of catastrophe is too great, and the chance of a marginally better option too slight to chance it.

What’s that you say? 6 weeks not enough time? Look here, Mr. Republican Senator,
this is not a confirmation hearing, just a superficial first cut to rule out obviously unacceptable candidates. There will be plenty of time to dig deeper later, in actual hearings, so extensive researches into the secret secrets of everyone is not necessary. This is a courtesy gesture, across the aisle, not some irreversible trap snapping shut.

So if Obama hasn’t heard back in 6 weeks he will assume Republicans are not sufficiently interested in the matter and shall feel free to pick on his own. Tick tock and all. But then he doesn’t want to hear about how awful his pick is, if he doesn’t hear back in time. If Republicans allow an unprecedented opportunity to expire they have no one but themselves to blame.

Then, as you say, they stonewall. I’m honestly sure they are going to stonewall right up to the election. I rate that likelihood at 90%. But Obama should still arrange it, so he can say, since it will be perfectly true: you are all complaining about nothing. About me doing the most regular thing a President can do. That won’t stop them, but the fact that it will be perfectly, obviously true – that Obama’s radicalism and executive overreach can’t be the issue – will have some tendency to blunt conservative complaints about the court situation, in an election year.


kidneystones 02.15.16 at 5:13 am

Whilst wondering if and what might happen can be an amusing way invest time and energy, those seeking a more action-oriented constructive activity may wish to actually make a difference. http://www.politico.com/story/2016/02/bernie-sanders-superdelegates-democrats-219286

As this excellent analysis by by Daniel Strauss makes clear, nearly losing in Iowa and getting walloped by rank and file voters in New Hampshire set the HRC campaign back so far that she only holds a 350 delegate advantage over Sanders after the first two states delegates are tallied. Yes, you read that right. A tie and a loss equals a 350 delegate advantage in the party that claims to be something substantially different.

I make no secret of my contempt for Democrats. Indeed, I much prefer Republicans to Democrats for the simple reason that Republicans are transparently dishonest and self-serving. With them, the cow-dung is on the surface and permeates all the way down. The Democrats on the other hand glaze the sh@t sandwich with chocolaty goodness, so we don’t get discover what exactly we’ve bitten into until after the first mouthful.

Fortunately, Sanders supporters don’t seem to have received the ‘abandon all hope, resistance is futile’memo being promulgated by the dunces and some here. These young/old/female/male/working class/college-educated/middle-class/minority voters have the ‘crazy’ idea that the elites are supposed to serve the needs and wishes of the electorate, and not the other way round. I frankly found Corey’s post on Scalia infantile and not at all of a standard I’d expect. The central 18th century model of conservatism is one that argues democracy is not a referendum by the uninformed (that would be us, the majority), but rather an exercise in which the rich (therefore the wise and moral) are selected to rule over the rest of us. No better and more meaningful example of this kind of conservative crap can be found anywhere than inside the Donkey Bubble, where normally intelligent people spend time trading tales about the evils attracted to Cruz and Trump whilst ignoring the reaming they’re receiving from Wall St. Big-Pharma, Big-Military, Bid-Ed, and Big-Insurance by the lackeys bought and paid for in the Democratic party. Dems like to claim they’re interested in minority voting rights and counting all the votes. Except, of course, inside the Democratic party, where one person – one vote is regarded as dangerous egalitarianism, allowing the great unwashed a real say in the way voters elect their own representatives.

50 years after the French Revolution, most of the population of France was legally disbarred from participating in ‘elections.’ Age, gender, and income kept regular folks under the thumb of the elites. The Dem super-delegate system is every bit as anti-democratic and anachronistic. And it won’t be removed by daydreaming about what if.

All respect due.


BBA 02.15.16 at 5:16 am

Not only do I expect the Senate to reject all of Obama’s appointees, I expect them to reject all of Clinton’s/Sanders’s as well. The Supreme Court will be an 8-judge panel de facto as long as Democrats control the White House and Republicans control Congress, i.e. the foreseeable future.


Tabasco 02.15.16 at 5:23 am

The Supreme Court will be an 8-judge panel de facto

Not as good as it could be, but a lot better than it was 72 hours ago.


Bruce Wilder 02.15.16 at 7:04 am

I am not sure why anyone would expect the Republicans to retain control of the Senate in 2017 — the odds would seem to be fairly heavily against them.


John Holbo 02.15.16 at 7:40 am

“I am not sure why anyone would expect the Republicans to retain control of the Senate in 2017 — the odds would seem to be fairly heavily against them.”

I guess I’d give the Reps 60-40 or better to hang on. But I’m not really an expert, more just a pessimist. (Which is often very like being an expert, I find. But still not the same thing.)




Zamfir 02.15.16 at 8:19 am

‘We are looking for Democratic judges, clerks for Democratically-appointed Justices – that sort of thing – not rock-ribbed Federalist society stalwarts.’

You can say that informally and everyone will understand, but is there any way to make it more official? Obama presents this list of very centrist moderates – republicans say in public “that’s a list of radicals, we won’t play that game”.

Obama says, just pick anyone else vaguely to the left; Republicans propose a hardliner of their own, say “look, a moderate centrist just as you asked”. Obama says, no, it has to be a Democrat. Republicans say “Ohhh look, Obama puts party politics over the common good. Unlike us, who just want a good candidate without caring about political orientation”.


GW 02.15.16 at 8:24 am

There are many variations to play out here. Here’s mine: Obama resigns the presidency and President Biden names Obama to the court.


bad Jim 02.15.16 at 8:35 am

The Senate will even reject Srinivasan, even though they’ve already voted for them. The president needs to nominate someone who won’t mind the futility of the effort. This situation demands surrealism. Nominate Bernie Sanders! Wouldn’t Senatorial courtesy impel a respectful reception? Nah. Biden! He’s qualified. Well-liked. Capable. Friendly.

Who could be worse than Scalia? Obama ought to nominate Mitch McConnell (age 73). It would be fun to see how that would play out. John Boehner needs a job; maybe he wouldn’t mind the attention. As long as no one could be confirmed, there’s no reason not to get ridiculous.


bad Jim 02.15.16 at 9:02 am

If Obama’s first candidate is denied a hearing by the Judiciary Committee, the obvious course would be to nominate each member of the committee in turn, the electorate being taught that none of their representatives are acceptable.


MilitantlyAardvark 02.15.16 at 9:06 am

It seems to me that conceding so much ground to the Republicans on Supreme Court picks by submitting a list of names for pre-approval would be setting a very dangerous precedent for further extortion, while also implicitly conceding that the extremist narrative has some truth to it. That would be a considerable long-term sacrifice for very minimal short-term gain, since the Republicans would accept a nominee or two, then vote them down on the basis of whatever conspiracy theory is currently getting a hearing among their base of the senile and the demented.

I also doubt that the Democratic base would be motivated to go the polls by such acts of futile appeasement.


Phil 02.15.16 at 9:08 am

the fact that it will be perfectly, obviously true – that Obama’s radicalism and executive overreach can’t be the issue – will have some tendency to blunt conservative complaints about the court situation, in an election year.

First off, and as per Cranky Observer at #12, in a sane political world – in a world with two parties that routinely deal with each other, where one just happened to be stonewalling at this particular time and on this particular issue – this tactic would be a counsel of despair. If they said “we’ll veto anyone you nominate” and you replied “aha, but what if I let you choose between Mr Right-Wing Democrat, Ms Even Right-Winger and Dr Wait He’s-A-Democrat?”, they’d just say “Dr Wait, he’ll do – nice doing business with you”. In that situation, in other words, this tactic is simply how you give them what they actually wanted all along.

But we’re not in that world any more, and haven’t been for some time (arguably since the Clinton administration). The effective leadership of the Republican party was captured a long time ago by people for whom stonewalling isn’t so much a tactic as a way of life – and I think we passed the point where the truth has any power to moderate what they say some time ago.

I like the idea of setting leading Republicans against one another, but I think it would take a lot more than a list of ‘moderate’ Democrats to do that. In the current climate it would draw a line between Kasich and everyone else – and Kasich, if he had any (short-term political) sense, would promptly jump back over the line and denounce Obama’s crazy list of radical madmen along with everyone else. (And where would they get the evidence that these people were radical madmen? They’d dig up something. Then they’d lie about what they’d found, then they’d exaggerate the lie, and then they’d make stuff up. Same old.)


Peter T 02.15.16 at 9:52 am

Phil @ 68 has it. The OP argues as if there were some critical mass of reasonable voters capable of judging the behaviour of the Republicans for what it is. But no such mass exists. Kasich has 4% of the national primary vote, and the shock-jocks are already putting it out that Scalia was murdered with a heart-attack gun in pursuit of Obama’s Muslim agenda.


kidneystones 02.15.16 at 10:29 am

@68 Thank you for more factually inaccurate Donkey Dung. The best case of Democrats working well with Republicans was when both parties decided in 2003 to invade Iraq. Indeed, on security issues the entrenchment of the Cheney security state under Obama would have been impossible without close co-operation between senior Democrats, including the President and his closest aides, and House Republicans. If the last 16 years have taught us anything it’s that Republicans and Democrats often agree when the question is screwing the voter at home and murdering brown people abroad. What was radically stupid and impeachable for 8 years under Dubya was magically transformed into sane foreign policy when the bombs being dropped and the drones launched were rebranded as Donkey love bombs, the death that poured out of Republican launched weapons was magically replaced with love, even if the ungrateful dead and injured on the receiving end failed to grasp the subtle distinctions. Indeed, as we’ve seen repeatedly even by people on this thread: dropping bombs on ‘savages’ brings Americans and even critics of America together like no other issue.

So, there’s that.


Nick 02.15.16 at 11:43 am

This is exactly why Bernie and Trump are kicking the crap out of the Democrats and Republicans. Yes Bernie is wiping the floor with Hillary and Trump is spanking the crap out of all the others. I read all this whining on here the Republicans this, they obstruct, blah, blah, blah. It’s the very same for the Democrats. Point being both parties do the same f’n thing. Democrats are blind to “their” people doing it as the Republicans are blind to “their” people doing it. BOTH PARTIES DO IT, get it through you your thick skulls. Yes, Obama has a Constitutional right to nominate whom ever he wishes. Yes, it is, and ONLY is, the right of the Senate to actually allow a judge to sit on the Supreme Court through advise and consent. I think it’s completely stupid for McConnell to come out and basically say “screw you Mr. President”. I can’t stand Obama because he is the worst President America has ever had PERIOD! I didn’t vote for him. He has no idea what the Constitution actual is or what it actually states. He is a racist big time and has proven that over and over. He hates the military and he hates cops. In short he is a complete scumbag moron that proves how many stupid Americans we have and possibly bring up a good reason to debate that maybe we need to have some kind of test or qualification that one must pass before they can be allowed within 50 feet of a ballot. With that said the Senate should STFU and do their damn job. I would rather see Trump as our next President BUT I’d be ok with Bernie as well because either one of them is going to shake up Washington. Thank God Hillary will never be the President of the U.S. – it’s going to be a great day…


magari 02.15.16 at 12:56 pm

Most likely scenario:

(1) Obama names centrist, R’s obstruct.
(2) D’s win the presidency in convincing fashion, Clinton/Bernie ride 100-days high to nominate a candidate to the left of Obama’s, R’s are forced to eat it.

Why most likely?

(1) Obama will want to cement his legacy as Obama the Reasonable. R’s will obstruct because not obstructing will only further inflame the nutters, guaranteeing Jeb/Rubio lose to Trump/Cruz. Establishment nightmare, because…
(2) Neither Trump nor Cruz wins a general election. Once elected, Hillary/Bernie will use their “mandate” and give something back to their base. R’s cannot plausibly obstruct for a second year running, because at that point they will stand to lose in the midterm elections.


Bill Benzon 02.15.16 at 1:41 pm


Fiddlin Bill 02.15.16 at 1:56 pm

In a climate where Trump is leading, why would one think that the voting public will be offended by Republican intransigence. The voting public doesn’t seem to care about any practical details right now (in majority), and Trump will likely win the GOP nomination and can beat either Sanders or Clinton. Who would Trump nominate for the vacancy? That’s an interesting question, isn’t it.


que_es 02.15.16 at 1:59 pm


Anarcissie 02.15.16 at 2:29 pm

Assuming Mr. O is working for the Democratic Team, he clearly wants to take advantage of the fact that the Republicans have occupied a forward fixed position, that is, declared andattached themselves to a strategy (obstruction) in advance. There is then no use worrying about who would be a good Supreme Court justice — since the Republicans will block any nominee — but great utility in using their obstructionism to turn people against them in the general election by exciting tribal passions (not necessarily just ethnic but gender, age, and class tribalisms), with no important vulnerabilities. A relatively young Latina of middle-class background and moderate record would be ideal.


ZM 02.15.16 at 2:54 pm

I don’t really understand why the Supreme Court in America is so political.

In Australia I can’t imagine having a similar discussion about the High Court justices. But the High Court is similar in that it can overturn Parliamentary statute and so on, whereas I don’t think there is a similar body in England that can do that to UK statues.

It makes me wonder if this is a problem with Scalia or if it is something to do with how your legal system is set up, since we don’t seem to have a similar issue despite also having the equivalent of your Supreme Court in our High Court.


harry b 02.15.16 at 3:47 pm

That Politico article is very short on local details. Wisc, eg, has a very well known, well funded, popular, former Dem Senator running against a Rep who is regarded by most Republicans as an ineffective nonentity; the Dems can only lose if things go really badly wrong in the Presidential race.


John Garrett 02.15.16 at 3:58 pm

Obama and his advisors wasted the first term trying to compromise with the R’s who had no interest in compromise. In the last couple of years he seems to have developed a (still small) set of cojones and been reminded, perhaps by his wife, that he actually has beliefs. He should nominate a justice who reflects those stated beliefs (gun control, women’s rights, campaign financing) and let them do as they will: a little Harry Truman.



RNB 02.15.16 at 4:23 pm

as a response to @72 and @73, there is Krugman today:
“On the substantive divide between the parties: I still encounter people on the left (although never on the right) who claim that there’s no big difference between Republicans and Democrats, or at any rate “establishment” Democrats. But that’s nonsense. Even if you’re disappointed in what President Obama accomplished, he substantially raised taxes on the rich and dramatically expanded the social safety net; significantly tightened financial regulation; encouraged and oversaw a surge in renewable energy; moved forward on diplomacy with Iran.

Any Republican would undo all of that, and move sharply in the opposite direction. If anything, the consensus among the presidential candidates seems to be that George W. Bush didn’t cut taxes on the rich nearly enough, and should have made more use of torture.”

So the calculus among the critical critics here seems to be that since the Republicans are not really that much worse than the mainstream Democrats, it is worth risking nominating the somewhat less electable maverick Democrat since even though less electable he would do much more good than the more electable but conservative one. It thus makes sense this year to take a chance on the less electable Democrat since the difference between the more electable one and the Republican nominee is practically nothing.

But every claim is just wrong:

the likely Republican nominee would in fact do much greater damage than Clinton;

Sanders actually has a much lower chance of winning in the general than Clinton, once the right-wing PAC money goes after the VT Senator (his college and health care plans, taxation plans and vaguely defined socialism will be subject to relentless attack ads) and to the extent that he will depend on an unreliable part of the electorate–the youth;

Sanders neither wants to nor is likely to get passed an agenda more progressive than Clinton’s.

To me it’s clear that the critical critics are willing to risk the less electable Democrat just to make some vague point because the greater pain the Republicans will inflict will not be experienced by them, which includes the strengthening of the toxic culture of immigrant- and Muslim hatred and climate science denial.


Sebastian H 02.15.16 at 4:45 pm

I want to highlight this comment by Glen because it identifies the real problem:

“The problem is that we have let SCOTUS expand its jurisdiction without any check. We have reached a point of deference to the courts that SCOTUS could get away with pretending that any problem or conflict is within its jurisdiction. This is why the commentariat is in an uproar about this vacancy. The Scalia replacement will be more powerful than the president, because he or she will be the swing vote on what is practically an ennearchy.

The problem is that we have let the Court acquire too much political power. Neither party can let the other put anyone on a Court that we have let become an unchecked ennearchy.”

This is echoed by the mystification of non-US readers about how we could be so worried about a court.

The more clearly political branches have ceded more and more power to the courts as each side sees the court as a way to try to ram things down the other side’s throat without compromise. The Court is where you can win win win and if you lose you can hope to appoint a better court later to win win win. In a good system, when you have a super dodgy Court ruling like Roe v. Wade you would get a clarifying amendment to the Constitution. You wouldn’t build a massive edifice of jurisprudence on top of it. You would be embarassed to keep mentioning it, especially when the ruling goes on and on about how the decision is grounded deeply in the history and sacredness of marriage and then you turn around and say “oh it really applies to everyone though”. The policy level result was fine, but it essentially invented a right to privacy (on abortion, lets not get crazy and pretend it is a real right to hold things private) and amended the Constitution to add it.

Another example, drug policy. For most of the history of the nation it was clear that the federal government didn’t have the power to regulate the mere production and sale of mind altering substances. We know this because the temperance movement had to get an amendment to outlaw alcohol. Now maybe the federal government should have such a power and maybe it shouldn’t. But it was clearly understood that it didn’t. But by the 1950s did we bother amending the Constitution to give the federal government that power? Of course not. Why bother? We can get pet Supreme Court justices to do our bidding.

And don’t whine about how hard amendments are, yes they are hard but we don’t even try anymore. The reason we don’t try is because the Supreme Court has gone well past ‘interpreting’ the Constitution and well into amending it. We don’t bother amending it because we put judges on the Court to do it for us. The problem is that the Supreme Court is a really bad institution for amending the Constitution. It is hyper elitist even compared to the Senate. It is essentially unaccountable. The members have life tenure.

When we can honestly say that the most important thing the President of the United States (one of the most powerful human beings on the planet) can do is appoint a justice to the Supreme Court, we are definitely doing something wrong with the Supreme Court.

So now we are here. Instead of having a mid level scuffle over Scalia, we are going to be in full blow up mode because both sides see this appointment as their chance to change the balance on which side gets to amend the Constitution.


Glen Tomkins 02.15.16 at 4:51 pm


I’m certainly not an expert, but I believe that British courts have asserted the power of judicial review, back to Justice Coke. There is no enumerated power of judicial review given to US courts by the Constitution, but it is assumed from the British legal tradition as an implied necessary power. Because the law cannot require contradictory actions from any party, the courts have to be able to resolve any such contradiction by systematically refusing to enforce one or the other arm of the contradiction. They announce this refusal in a decision, and while this does not repeal the law, it renders it unenforceable.

As to how US courts, at least at the highest level, became so political, the simple but uninformative answer is that they started deciding political cases. I assume from your dismay that Australian courts observe a certain jurisdictional modesty. SCOTUS doesn’t, at least not lately.

Appointments to SCOTUS were not so nearly politically fraught earlier in our history, presumably because no one expected such appointments to have much political consequence. A partial list of important legal, or at least quasi-legal, issues that today would of course be referred to the courts for a determination, but which nobody at the time thought lay within their jurisdiction, would include:
1) the constitutionality of the Alien and Sedition Acts
2) the constitutionality of the nullification of those acts by two states
3) the constitutionality of the wave of drastic changes in laws governing slavery that the southern states made after 1800
4) the nullification of the Tariff of Abominations by South Carolina
5) the nullification of the Fugitive Slave Act by several states and localities
6) the constitutionality of secession by 13 states
7) the constitutionality of the war against and occupation of the seceded states
8) the results of the disputed presidential election of 1876
When you consider that the US chose war or the threat of war to resolve these disputes, rather than submit them to arbitration by the courts, that’s some serious jurisdictional modesty at work. More recently, we don’t think Congress can demand secret tapes from the White house without a court order.

The real question is why the other branches let them get away with this jurisdictional immodesty. Our Constitution gives the legislature the power to limit the jurisdiction of the courts (Art III, sec 2, para 3). In so doing it also creates the duty to enforce limits, but this is a duty that is systematically evaded by the legislature.

A good part of the reason is that we tend to think that my list of horrors represents lost opportunities to resolve issues without war, and in the favor of the right, when the more inherently political branches of govt can’t deliver the right result (e.g. Brown v Board of Education). But we see where that noble sentiment leads if you let the deference of political decisions to the courts become so routine as to be the expected and respected outcome. The courts become politicized, as you point out. SCOTUS now probably could assert jurisdiction, the power to decide, over just about any question, and it would be deferred to.

That’s obviously unsustainable. Just in terms of mechanics, at this point, neither party should ever allow any president of the other party to ever name a SCOTUS justice. I don’t fault the Rs, at all, for their present stance. I commend them for their openness, because I guess there might still be 2 or 3 voters, League of Women Voter types, left out there who might be shocked by that stance and vote our way next election, but would remain complacent if only the Rs accomplished the same end by foot-dragging without the stated categorical denial. The Ds proper response should be to state that exactly the same principle will guide our actions in the future — no more R appointees, ever, not as long as Ds have enough Senators to filibuster.

But even if the parties reach some sort of truce, some arrangement that would allow new appointments (probably something along the lines of the Missouri Compromise, one R judge is allowed through for every one D judge), I don’t think that rule by The Nine is at all a good idea. While we can point to the Warren Court as a shining example of the good a court can do while the branches more closely attentive to majoritarian tyranny can’t or won’t act, there are at least as many Dred Scott and Plessy v Fergusons out there as there are Brown v Board of Education. The kind of high-powered, connected person at all likely to be considered for SCOTUS is inherently going to have a bias in favor of comforting the comfortable and afflicting the afflicted.

But mostly, power corrupts and absolute power corrupts absolutely. An unchecked SCOTUS will inevitably become more and more morally corrupt, and annex to itself ever greater power to spew that corruption over our whole society.

Practically speaking, what the legislature should do, is to remove jurisdiction over election law from the courts. This is a clear example of an area that doesn’t need judicial oversight because, as Al Gore famously observed, Congress is the “controlling legal authority” for federal elections at least. Perhaps a shot across the bow will instill the proper self-control. If that doesn’t work, the only alternative I see is to Balkanize the law, to create many courts with the final judicial authority over only one fragment of the law. “SCOTUS delenda est”, if you will


TM 02.15.16 at 5:11 pm

I think SH 83 is right. If constitutional amendment by super-majority were a routine happening as it is in every other constitutional system, the court wouldn’t have that absurdly mythical power it has now. But the system is so petrified, there really is no way out short of a revolution.

By the way good point Bruce @41.


Gerald 02.15.16 at 5:12 pm

white supremacist ideology and its manifestation as American racism is what is driving this conniption by GOP/Republicans … they do not want THE BLACK …POTUS Obama to replace the seat Reagan filled PERIOD. They in their twisted logic consider THAT a sacrilege …that they can not live with …Constitution be damned!

Their level of respect for said Constitution as been on public display for the past 7 years! BEFORE the President Obama was sworn in …they met and decided to BE the most obstructionist Congress since the American Civil War.

The unprecedented number of filibusters by GOP/Republican Senators, the shutting down of the US government, opposition to EVERY legislative effort by this President, the TWO worst Congress’s in US history to name just a few of the highlights.

Future historians will not be kind to this crop of “anarchist”!


Bruce Wilder 02.15.16 at 5:14 pm

ZM @ 79

The UK now has a Supreme Court. In typically British fashion, its powers of what elsewhere would be called judicial review are complicated, surrounded with many qualifications of scope and means, not least because “parliamentary supremacy” is at least nominally sacred as a principle of the famously unwritten British constitution. But, it does have them, primarily in relation to devolution and by delegation from EU human rights law, which features strong judicial review.


Mark Field 02.15.16 at 5:21 pm

I’m certainly not an expert, but I believe that British courts have asserted the power of judicial review, back to Justice Coke.

By the mid-1700s, it was well-settled that British courts had no such power.


Mark Field 02.15.16 at 5:26 pm

A partial list of important legal, or at least quasi-legal, issues that today would of course be referred to the courts for a determination, but which nobody at the time thought lay within their jurisdiction, would include:

Of your list, numbers 1, 5, 6, and 7 were heard and decided by courts, though not necessarily the Supreme Court. Number 2 had no real world effect, so there was nothing to challenge. The laws in number 3 were obviously Constitutional. Number 8 was effectively decided by the Court because the Chief Justice (Bradley) was the deciding vote on the Commission.


bianca steele 02.15.16 at 5:29 pm


This is fair. The shift to the Supreme Court depoliticizes political decisions. (An argument could be made, for example, that Roe v. Wade cut off an emerging feminist politics at the legislative level, organized around getting as much change as possible in the places where it was possible.)

However, Sebastian’s argument is mostly code for “the court’s decisions for many years were wrong, and hence political,” which is far from proved. In recent years, we’ve increasingly seen arguments with bogus metaphysics surrounding some supposed true purposes of “the legislative branch” as opposed to the executive functions, and so on, and these are also melded with the earlier arguments.


RNB 02.15.16 at 5:41 pm

@86. yes that gets at the emotions triggered by Obama choosing Scalia’s successor. Just a wild guess: Gerald, are you taking the bull by the Horne here?


Bruce Wilder 02.15.16 at 5:45 pm

Glen Tomkins @ 84

That was a strange rant.

In the UK, “parliamentary supremacy” and the unwritten nature of the Constitution traditionally precluded judicial review in principle. In the emergent chaos of British political history, the courts were alternately a check on the aristocracy by the king and a check by the aristocracy on the king. Not having a king or an aristocracy, these issues have not arisen in American political history.

We did have slavery. As I recall, the Supreme Court did try to resolve those controversies. I am sorry Glen missed that part of U.S. history. The Civil War resulted in three amendments to the Constitution.

In U.S. history, the Court has been a check on the People placed there by the wealthy, except when it was not. The war of the rich on the rest fuels the fury of these disputes. It is not the Court we should consider ridding ourselves of.


Plume 02.15.16 at 5:49 pm

John, with all due respect, your suggestion strikes me as the epitome of what is wrong with the center-left. Its insistence that it’s actually a good idea to be forever “reasonable” in the face of right-wing lunacy, and that this “reasonableness” must take the form of moving ever closer to right-wing lunatics. As if, reaching out, trying to find common ground, is a smarter strategy than matching the right’s fire with the left’s fire.

It’s also admitting, whether folks realize it or not, that one accepts that the right will push vigorously, relentlessly, aggressively, for its own agenda — never trying in the slightest to assuage the fears of the left — but the left can’t do likewise.

And then there’s the practical and pragmatic aspects of this:

It’s highly likely that no matter whom Obama nominates, she or he will not get through. Even those moderates. So, at best, it’s an empty gesture and gets us nowhere. It also sends yet another signal to Democrats, Social Democrats and those further left, that the Dem leadership is far more interested in the status quo, protecting ruling class privilege, and not offending crazed Republicans, than actually nominating great justices who would fight for “the people.” Which, of course, we already knew.

And, if by some fluke, the Republicans called Obama on his bluff, they would be voting in some harmless sacrificial lamb (from their POV), blocking yet another justice who could shift the ideological balance of the Court to the left. By definition, you can’t offset a far-right justice with a centrist, or even a liberal. Each time the Dems fail to nominate an actual leftist, the Court tilts a bit more to the right. Liberals aren’t as far to the left as a Scalia is to the right, etc.

In short, what Obama really should do is pick the best possible leftist judge . . . and for good measure, find one to really make heads on the right explode. How about a woman, a person of color, a gay woman, an atheist, and a renown Marxian legal scholar to boot? That I would pay to see.


RNB 02.15.16 at 5:52 pm


Glen Tomkins 02.15.16 at 5:59 pm


I wouldn’t phrase the problem of excessive judicial power in terms of the idea that SCOTUS has usurped the power to amend the Constitution. Laws don’t interpret themselves, and if you have the unlimited power to do the interpretation, you don’t need to amend anything. The analogy is Stalin’s reputed observation that who votes doesn’t matter, who counts the votes is what matters.

And I don’t think the example you raise of Roe v Wade is a good example of SCOTUS improperly deciding an issue that the political branches should decide, or that they should amend the Constitution to decide. Whether or not govt has the legitimate authority to criminalize abortion is a clear case of ius, as opposed to lex, an issue of individual rights, and not properly a political issue, as say, campaign finance, and the dispute over the FL 2000 results were political issues, matters of lex. The courts are supposed to protect individuals from govt overreach, they are supposed to define the limits of majoritarian tyranny, and confine that tyranny to matters of lex, not ius. No one’s legitimate individual rights should be at the mercy of majoritarian tyranny, or even majoritarian inertia.

What happened in the case of abortion is that reality changed out from underneath the common law. At one time abortion was medically unethical because it was unsafe. Removing kidney or gall stones was also unethical for the same reason, and both abortion and “cutting for stone” are against the Hippocratic Oath as Hippocrates set it down. Whatever sexist and moralistic context in the case of abortion prevented its decriminalization along with cutting for stone, was a completely legitimate and necessary issue for the courts to address. The common law, not legislatures, made abortion illegal, way back when, and it is absolutely sound and legitimate court jurisdiction to correct injustices that develop when reality changes out from underneath existing law. The common law had become codified secondarily since the days of Justice Coke, and so legislative failure to correct the law that legislatures had fossilized into code law triggered a judicial duty to do the correction.

Once abortion was safe and medically ethical, the paramount concern became the right we all have to control our own bodies. No one would deny that I have some sort of right to life (as unfortunate as some of the consequences might be in terms of long-winded postings), but should my continued life at some point require a blood transfusion, the law will absolutely protect your right to refuse to give your blood to save my life. As trivial a violation of your body as it is to as force you to donate a unit of blood is, compared to forcing a woman to carry a child to delivery, the law will absolutely not require that unit of blood from you. The law won’t even let me have your kidney or liver after you’re dead, such is the respect the common law has for your right to control your person, even after death when it’s of no tangible use to you.

It’s a simple matter of equity that women have the right to deny a fetus the much more invasive and risky right to free use of their bodies. That became the controlling issue in the matter of abortion after abortion became safe and therefore ethical.

There never was any need to appeal to specific Constitutional provisions to achieve that result, and arguments from rights based on the common law (as is the case with whatever right there is for private gun ownership), were more powerful and more to the point in this case than any sort of argument from the Constitution. There is therefore absolutely no question of a need to amend the Constitution in order to recognize a women’s right to abortion.

What has muddled the issue is that once you decide to have a Constitution, and you make what is arguably the mistake of enumerating certain individual rights in that basic law, you have to account for the basic law in deciding cases that involve individual rights. This difficulty was recognized in the document itself in the 9th Amendment, inserted precisely because people had pointed out that the enumeration of certain rights in the prior eight amendments would prejudice the recognition of existing rights under the common law. But of course tying a claim for the existence of a given right to one of those enumerated rights is about the strongest claim that can be made, so an advocate is practically compelled to search for any connection, however tenuous, to an enumerated right, however stronger the common law right.

Constitutionolatry is ahead of even SCOTUSolatry as a source of our woes. We refuse to make obviously necessary changes because whatever foolish or obsolete mechanism is enshrined in that document is sacrosanct, thought of as foundational rather than contingent.

To put it in terms of the issue you raise of keeping our basic law current, the one big thing we need to amend the document to achieve, is the abolition of the states. I suspect on the basis of prior posts you won’t join me in urging such an amendment, but I would point to that issue as an example of something that does actually require amendment to achieve.


RNB 02.15.16 at 6:00 pm

The other thing I am wondering about is the data that show Sanders running stronger against Republican nominees than Clinton. But let’s say you get 1000 people’s preferences in these head-to-head matches. How many people do you have to ask before you get 1000 people who will express a preference for or against Sanders? I can’t figure out from the polls being posted how many express no opinion in these head-to-head matches on account of not knowing who one or both candidates are. I think that Krugman may be right that these polls are worthless in determining electability.


Gerald 02.15.16 at 6:08 pm

LOL …it is certainly not intention to be gored by the bull***!

I find that willful ignorance is NOT BLISSful … just plain stupid!

These folks are playing for power, money, influence and control!!!

And the fact that THE American Peoples ELECTED an African-AMERICAN man to the highest office in the land the 1st time in 240 years of US governance … in their minds was a fluke … an aberration!

The SECOND time … well … if they could ERASE the first 16 years of 21st Century America … from the minds of each American AND the history books … make no mistake …they would!

Yes …they’d like to erase Bush/Cheney, GOP/Republican governance 2001-2008 too!
Because they know ….that disastrous period led directly to the American Peoples willingness to try something different … you got to admit …after 240 years … a BLACK MAN as President …is something different!

AND ..that difference has been pretty good for the vast majority of Americans and the country!


Glen Tomkins 02.15.16 at 6:39 pm


“As I recall, the Supreme Court did try to resolve those controversies.”

Really? I don’t recall that even abolitionists thought that they could get slavery abolished by SCOTUS, that anybody thought that slavery was something the courts could abolish, that courts could even demand the restoration of state laws governing slavery to their pre-1800 provisions. My point is that today, of course the first venue people would turn to in order to resolve such an issue, the authority that everyone would respect in deciding the issue, would be SCOTUS.

The only resolution that SCOTUS attempted on the issue of slavery was Dred Scott. It was widely thought at the time, even by people who favored its result, to be judicial overreach. They gave the plaintiffs much more than they had demanded, because the plaintiffs had no expectation that SCOTUS would assert itself so deeply into the issue of slavery.

And another thing I missed in my study of history, is the case the seceding states, or the Lincoln administration, brought to the courts to resolve the question of secession. What’s that case called, so I can Google it?

Sure, it really is a matter on which reasonable people might differ, whether it was sound and wise for our ancestors to not appeal the issues on my list to the courts. Short term, sure, I agree it sure is attractive to imagine the Civil War prevented by Davis v Lincoln. Battling out our differences in the courts has a lot to argue for it as a plan, if the alternative is literal battles. But it really should not be a matter of dispute that our system in earlier times simply didn’t grant SCOTUS the scope we would automatically grant it today to decide such issues. That is our history.

But consider this, what I meant by that “short term” reservation, is that we really can’t let nine people run this country. Had there been a Davis v Lincoln to settle whether or not secession was constitutional, the composition of the Taney court suggests to me that the ruling would have come down in favor of Davis. Could Lincoln have prosecuted war on the literal battlefield to end slavery, after appealing and losing on the judicial battlefield? Would you give up the end of slavery to get a system in which judges get to decide., and we don’t have to go to war over such issues?

If you find what I say unsettling (congratulations, you’re paying attention, as I sure finds it unsettling) and strange, please tell me how we proceed without checking SCOTUS power. How do we get past the purely mechanical problem of deciding who gets to be one of the ennearchs? Does our party continue to let the Rs asymmetrically litmus test to the point that no D ever passes their test, while our side sticks to sweet reason and let’s their half-way reasonable nominees through when they hold the presidency? That plan ensures a SCOTUS that would make Roger Taney proud, a Taney court with absolute power, and Dred Scotts into the indefinite future. Alito and Roberts, and Scalia and Thomas all both passed our side’s scrutiny as half-way reasonable.

SCOTUS delenda est. Tell me how we get by just the next few years without that strange and unsettling result.


Mark Field 02.15.16 at 7:07 pm

And another thing I missed in my study of history, is the case the seceding states, or the Lincoln administration, brought to the courts to resolve the question of secession. What’s that case called, so I can Google it?

Putting aside the fact that the whole point of secession was to deny the power of any US courts to resolve any issues whatsoever, the case you’re looking for is Texas v White.


BBA 02.15.16 at 7:11 pm

The power of SCOTUS has been permanently entrenched by the effective impossibility of amending the text of the Constitution.

And I do mean impossible, not just difficult. The Equal Rights Amendment was as benign a change as possible, merely a restatement that yes, the 14th Amendment’s equal protection guarantee applies to women (which nobody should seriously doubt). Yet a small clique of paranoid reactionaries managed to convince enough of the country that it hid a sinister attack on the American way of life that the amendment was blocked, and nobody’s seriously tried since. What’s the point, if you can’t even get the ERA passed what chance does a more substantive change have?

(I’m not trying to discount the opposition to feminism that still exists, the misogyny that permeates our society, and so on. All I’m saying is even in our misogynistic patriarchal society it’s a fringe position to not even want to give lip service to formal equality. Their numbers are few, and they are stupid, and they still won.)


Nick 02.15.16 at 7:14 pm

Gerald, why so racist????

I think Obama has been the worst President ever and it has NOTHING to do with his skin color. It has to do with his lack of leadership, lack of any cohesive understanding of economics, and absolute lack of any understanding of foreign affairs. I admit I voted for him the first time AND not because he was black but because I felt (big mistake now) that he might have the ability to actually bring change and, as best he could, cooperation in Washington. It didn’t happen because he was too young, too ignorant, too arrogant, and lacked the capability to see the big picture. He was supposed to be “hope and change”, he was suppose to be the “uniter”. It didn’t happen, he failed BIG time.

His first HUGE mistake was ramming Obamacare down everyone’s throat with some procedural tricks in the middle of the night. That’s not how you deal with a HUGE policy change and you must agree that you sure in the hell don’t lie about it to make people feel good “you can keep your doctor, you can keep your current plan, and you will save on average $2k to $5k a year” blah, blah, blah. All blatant lies he KNEW were lies from the onset. Next, we have the worst economy we’ve ever had in over 50 years. Unemployment, or more specifically, underemployment is worse than ever. I don’t care what the “official” number may say they are BS, just ask 100 or 1,000 people and you’ll get the real answer on how the economy is doing. Ask the minorities how their doing since Obama has been in office. Yes the rich are doing just fine as they always do under a Democrat or Republican administration. Our foreign affairs are a complete mess because of Obama’s complete ignorance. Now granted he didn’t start this huge mess in the Middle East but he sure in the hell has made it much worse then it could have been with his consistent misjudgments. Nobody, and I mean nobody in the world fears Obama, he is the laughing stock of the world as is America for being suckered into electing someone so ignorant and arrogant into the highest office in the land.

It’s people like you who try to scare people into being silent by being racist and throwing around the race card with the typical “you don’t like him because he is black” give it a rest pal very few are putting up with the racist crap people like you spew. I’m neither Republican or Democrat but I am tired of the same old crap over and over and that’s why Trump and Bernie are kicking the crap out of everyone else. Hillary, she is all done, she will never be President. All I know is if you want to get this country moving forward again you need people in Washington who know how to work together to make things happen. Neither party is always going to get everything they want so they need to get over it. Trump or Bernie, in my opinion, will make a good start at that. Lastly, to get this country moving forward is the need to shut racist and political correct people up and shine they light on them like the cockroaches they are. They do nothing to help make a country stronger, they do nothing to help bridge the gaps to reach agreement, they do nothing to make a community stronger, they do nothing to help people see each other as people rather than a skin color. Racist and political correct people simply make a nation weaker by dividing all people until they’ve destroyed the very fabric of what a community and nation really are…


Bruce Wilder 02.15.16 at 7:23 pm

Glen Tomkins @ 98

You are deep into your rant and I doubt that historical facts are likely to calm the ravening beast.


The Temporary Name 02.15.16 at 7:31 pm

Nick 02.15.16 at 7:14 pm

There’s better bullshit available elsewhere.

To the subject at hand, Obama’s already nominated someone who took 20 Republican votes. He can nominate another such person again. There’s no need for a time-stretching game.


bexley 02.15.16 at 7:36 pm

Sebastian @ 83

Didn’t the right to privacy get mentioned in Griswold first? So it seems odd to say that it was “invented” in Roe.


urban legend 02.15.16 at 7:54 pm

I like this suggestion by Mr. Holbo a lot.

Here is a comment that’s closely related to this post that I put on another website just a few minutes ago:

President Obama, while having done quite a few good things while in office, was a terrible leader of the Democratic Party. He tried to be above all the “partisan bickering,” refusing to articulate the fact that 99% of the “bickering” came from the Republican side and going out of his way to distance himself as far as possible from the “professional left” that had done more work than anyone to put him in office. The results of generating no enthusiasm for the party apart from his persona were the two worst mid-term disasters in modern history, creating the conditions for complete legislative gridlock — and, ironically, cutting into the legacy he obviously wanted to leave.

In other words, President Obama owes it to the party that put him in power in the first place to play out this nomination process in a way that will, with complete justification for the good of the country, damage the Republican Party as much as possible


Glen Tomkins 02.15.16 at 8:02 pm


Texas v White was a case brought years after the war ended to decide what to do about bonds that the secession govt of Texas had sold while it was in existence. Yes, the courts, even back in 1869, were thought necessary to bring into the picture in order to sort out what to do with some of the practical consequences of secession. The Texas state legislature did things while that state was in secession, and some of those things had consequences that needed to be resolved after that secession legislature had passed into the archives. But the idea that whatever theory about the larger questions this decision sets forth was thought even by its authors to be a definitive guide to those larger issues, is not sustainable.

The Union never evolved a coherent theory about the many-faceted realities created by secession. The theory most widely put forth at the outset by Lincoln was that secession was not constitutional, therefore hadn’t happened. The seceded states theoretically had the continued right and duty to, for example, send members and Senators to Congress, but practically speaking, that right of the people of those states was temporarily blocked by insurrectionists. As the end of the war approached, the difficulty encountered subduing the South had by then made it clear that the problem was not at all just that a few violent insurrectionists were keeping some sort of silent majority of Southerners down by force. So the seceded states had to be reconstructed, because their whole social and political structure could no longer be trusted to produce the non-treasonous result of ending support for secession. These states were denied self-determination for a time, reduced to territorial status, and then readmitted by statute, mostly after the US just gave up on the idea of Reconstruction in 1876.

If this, Texas v White and whatever, stand now as any sort of coherent and precedent-setting set of rules, then we have an obvious solution to our current problems. The next time Ds get the legislative trifecta, we use it to once again reduce the former Confederate states to territorial status. If Congress had the power to readmit them in 1876, surely it has the power, under the settled law legal theory you imagine Texas v White to embody, to put them out of the Union again. We readmit these red states only after we have used the resulting absence of crazy legislators and crazy states to amend the Constitution to our liking.

I hope you find this idea strange and unsettling, but it is a consequence of what you have to appeal to as the only legal theory you could construct after the fact if you try to hallucinate the judicial response of 1869 to the facts of the Civil War into a coherent and justiciable part of settled law. The court in Texas v White, and in all other cases arising from the war, had to treat the real world consequences created by secession and its suppression under some sort of theory, because that’s what courts do, fit events into some set of facts that make up the definition of a previously defined crime or tort. But Texas v White doesn’t even pretend to set forth a coherent and complete legal theory of secession and the response to secession, it invents just enough theory to let it come to a just and reasonable disposition of funds left over form the bond sales. Don’t pretend on its behalf that it did establish settled law on secession, because the reality is that secession and its response were settled by force, and pretending after the fact that force can decide legal issues, that it creates and vindicates a legal theory, is about the worst idea you could advance.

Secession in 1860 wasn’t wrong because secession wasn’t constitutional. It probably is constitutional. Secession was wrong because it was treason in defense of slavery. Whatever the right to secede, secession still creates a state of war with the Union. It is still treason, just as surely as the Founders were all traitors to the Crown. You add nothing to the wrongness of treason in defense of slavery to claim that it was also illegal.


Glen Tomkins 02.15.16 at 8:07 pm


I’m always up for historical facts. Set forth a few pregnant facts, please.


Dr. Hilarius 02.15.16 at 8:08 pm

Why not nominate Richard Posner of the 7th Circuit Court of Appeals? A conservative, placed on the bench by the sainted Ronald Reagan, with a long history of adhering to an economic analysis of law. (But who, in recent years, has written opinions upholding abortion and gay rights along with scathing opinions on unchecked prosecutorial misconduct.) My bet is the Republicans would reject him as readily as any other Obama nominee. The contortions they would employ to reject him would be amusing.

At this point we are all just reading tea leaves. The only certainty is that the Republicans will reject any Obama nominee. It’s like voting to repeal the ACA 63 times. Governance is no longer a factor to be considered.

I noticed Gareth Wilson @ 4 mentioning Mary Yu. Mary Yu of the Washington State Supreme Court? Gay, Latina and Asian covers a lot of bases. No federal experience but I like her a lot. I participated in a CLE with her while she was still on the King County bench. Very smart and very pleasant.


lemmy caution 02.15.16 at 8:12 pm

Richard Posner is 77 and a conservative turned moderate. not Obamas best pick. a pretty good judge though.


Plume 02.15.16 at 8:13 pm

I saw a suggestion on another site, which is kind of a hybrid of what Mr. Holbo suggests.

Basically, Obama puts forth his first choice, a moderate, someone no one could really be upset with on either side of the aisle, and then tells the Republicans, “I have a list of 10 other choices, and each justice is more liberal than the previous nominee.”

I’d refine that bit and make it, “I have a list of 10 other choices, and each justice is further to the left than the previous nominee.”

The poster added something about vetoing all bills until they brought his nominees up for a vote, but I’m not sure that would really work. The Republicans likely realize he’s going to veto those bills anyway . . . . but that’s a minor quibble.


RNB 02.15.16 at 8:26 pm

@101, in regards to Obama as the worst president ever


RNB 02.15.16 at 8:46 pm

So Michael Tomasky suggests that Obama may nominate Tino Cuellar. If Cuellar is willing to be strung along for a while, that would probably really help the Democrats in November.


TM 02.15.16 at 9:06 pm

Glen 84: your claim about US courts “deciding political cases” makes only superficial sense. When is a Supreme Court case not political? Gris wold is an excellent example. What could be less political than a couple claiming the right to use contraceptives? And yet, even 50 years later, what could be more political?

Or let’s look at the Exxon Valdez decision, in which the SC cut jury awarded damages for an unprecedented environmental disaster even though nothing in the laws or constitution provided any basis for limiting the damages. Was this a political decision? Of course it was. But it also was an ordinary civil law suit that of course was subject to Supreme Court review.

As to historical precedent, do you really wish to argue that Dred Scott or Cherokee Nation vs. Georgia were not political cases, and do you think that those who hoped that the Supreme Court would use its authority to rectify obvious injustice were foolish to do so? I really don’t understand your point.

Plume 93: I would really prefer judges to be impartial. It’s not their job to “fight” for a partisan political agenda.


The Temporary Name 02.15.16 at 9:11 pm

This’d end the Cruz campaign if he has to actually filibuster. Get those nominations in now!



Gerald 02.15.16 at 9:28 pm

Nick …what do you find to be racist?

The stating of factual history of of the US and the laws codified by its citizens (happen to be “white”) that made it legal to enslave human beings (happen to be “Black”)? That made it legal to oppress, terrorize, and exclude an entire population of Americans based on race and skin color?

I bet you call THAT a “race card” ….LOL.

Your “judgement” that President Obama is the worst President in the last 50 years is not supported by facts or for that matter by the vast majority of the American people. You do know President Obama was ELECTED …TWICE!

Your declaration of having voted for President Obama rings false. Your entire screed consists of RW talking points repeated ad nauseam for the past 4-5 years.

The history books with say that the 112th Congress led by Nancy Pelosi was one of the most productive and consequential in the preceding 100 years. Now the 113th and 114th Republican-led Congress’s …well …they ARE already the worst in the past 150 years!

You may wish to remain willfully ignorant of the huge/spectacular improvement to governance and the economy in the USA between 2009 to the present under POTUS Obama’s leadership AND Bush/Cheney GOP/Republican governance 2001-2008 . I assure you …future historians of American history …will not!

By the way …have you ever tried to get someone who didn’t want to get alone with you to do so?

The RW screed that President Obama failed in “bringing” the parties together is just plain Bullsh****t and you know it!

BEFORE President Obama was sworn in the current Senate Majority leader gathered a group of like minded Republicans and decided to BE the most obstructionist Congress in US history since America’s Civil War … How do you think the unprecedented number of filibusters came about?

Republican LED government shut down, unpresidented obstruction to EVERY legislative policy by THIS President … 113th and 114th Congress’s led by Republicans and considered the WORST performing in US history!

Sheeze … take your line of willful ignorance somewhere else ….


TM 02.15.16 at 9:37 pm

For goodness sake, he’s a troll…


bexley 02.15.16 at 9:42 pm

Cranky @ 12. As a Brit hearing things second hand, my understanding was that Obama’s two picks so far (Kagan and Sotomoayor) have been solid. Certainly not “center-conservative”.


Glen Tomkins 02.15.16 at 10:04 pm


Sure, with the best will in the world, you can’t keep lex and ius separated categorically, by any externally enforceable rule. But, like pornography, I know a case of pure individual rights vs the claimed needs of govt power when I see it, and I suspect that most of us are not in radical disagreement that Griswold was on the ius side of that line. Maybe at one point our courts could keep that balance, but that self-control has been lost, utterly, at least at SCOTUS level. And once breached on one side, even perceived to be breached on one side, of course the other side is going to retaliate and lose any compunction about respecting the distinction.

My understanding about the Dred Scott decision (and in an earlier post I mistakenly spoke as if the former owners were the plaintiffs, not, as is the case, Scott) is that, yes, Scott sought to assert his individual rights, a ius case, but that the majority decided that the needs of the political and social structure of the slave South demanded that black people not be acknowledged to have any rights, because even the sliver of admission of the tiniest civil right, would bring the whole social system down. The Taney court decided that ius could not apply to blacks because what they imagined to be the horrible consequences to Southern society if such individual rights were respected. Of course that was a political decision, majoritarian tyranny horribly misapplied far from its proper realm of deciding matters such as where the roads go, how high what sort of taxes are, where we invade next, etc. Courts shouldn’t make political decisions, such as the one the Taney court made to protect the structure of Southern society. No, I wouldn’t say that Scott was seeking redress of the political situation, he did not petition to free all the slaves. He sued to vindicate his own rights, and was wrongly denied those rights by “justices” bent on protecting society against the mere example of even one black person being given any sliver of rights.


David of Yreka 02.15.16 at 11:02 pm

I’ve got my own private nightmare. Its name is Bush v. Gore, the case where the Supremes called an election on the basis of a questionable declaration by a state official (Katherine Harris) in Florida.

What will happen if there is widespread voter suppression, fraud, bogus counting, etc. and state officials call the election every which way, and then the SC is split? I imagine that the lower courts could have diverse opinions. What then?


Anarcissie 02.15.16 at 11:33 pm

@94 — But I do have a granddaughter, and I don’t see what particular good nominating and possibly electing a severely flawed politician like Mrs. Clinton is going to do her.


Keith 02.16.16 at 1:35 am

Everything as Lenin put it is “Political”. The correct term here is surely “controversial”. Political is about how state power is used; all law requires the use of state power. The question is do the courts decide controversial issues and if so how? Before the first world war the statutes about elections in England contained no absolute rule barring women from elected office but the courts decided to interpret them that way to stop women being candidates or taking office, and Parliament refused to pass new Law to allow female councillors. Allowing women political rights was seen as a big social change that neither judges or MPs were willing to allow. Slavery was clearly an American custom when the USA was created as a independent Republic so the continence of Slavery can be defended as the correct decision applying “Judicial restraint”. Banning the sale of contraceptives even to married people is not any different if you assume a Catholic stance as the starting point and free choice as the new social innovation that courts should avoid. Scalia was a bigot but he had a social theory to justify it. Culture defines what is controversial and culture changes over time. A controversial idea at any time is controversial and changing the venue of who decides it does not change the reality. If Dred Scott had not been decided as it was Slavery would still have been just as controversial and a civil war could still have occurred.

It probably suits politicians in the US to allow courts to decide controversial issues as it relieves them of responsibility for doing so. If they assumed the duty of decision I am not sure the results would be better.

Ideally if the Congress were elected by a form of PR you would have a multi party system and obstruction would be less likely. Having a bigger court with more members would make each judge less powerful and so each appointment less controversial. But the problem is ultimately caused by the way the US system is set up with President and Congress as separate mini power centres. It throws power to the judges. It is likely to be a problem indefinitely unless the political system is revised fundamentally.


John Holbo 02.16.16 at 1:37 am

I’m with #103. I’ve seen it done better.

Re: the Posner suggestion. If someone told me I could press a button and magically confirm Posner for the job, rather than taking my chances on getting a moderate liberal or else – if Republicans shoot the moon – some crazy conservative, I’d press the Posner button. Even though Posner is really quite conservative. He has said highly critical things about Scalia and Republicans, because he’s not nuts, but he’s quite conservative. He’s the only candidate who could maintain the Scalia rhetorical fun factor, potentially. He’s got the same high entertainment value. It would be fascinating watching Senate Republicans grill him. Never going to happen in a million billion years.


RNB 02.16.16 at 2:25 am

@120. The statistical relation about having daughters and preferring Clinton to Sanders does not tell us anything about the rationality of that preference. I just found it interesting. At least there does not seem to a self-selection problem, i.e. the reason that those who have daughters are more likely to support Clinton is that Clinton supporters generally select to have more daughters.

But of course the right-wing may accuse Clinton supporters of having actively selected daughters through artificial insemination of X sperm, abortion of male fetuses, and neglect of the health of infant boys.

This is the kind of Satanic influence Hillary Clinton is known to have had.

Glenn Beck and Rush Limbaugh will soon ask as they invert Amartya Sen: where are the millions of missing boys among Clinton supporters?


Bruce Wilder 02.16.16 at 3:37 am

Glen Tomkins @ 106 re: secession

Secession in 1860 presented a constitutional problem. The Constitution, itself, neither provides for secession nor explicitly prohibits secession. The Constitution does put the Federal government on its own bottom of law, taxation and administration, separate and independent from the individual states.

Presumably, an individual state, desiring to secede, could have applied to the Congress for a separation and the Congress could have improvised some vehicle to consent to a separation, if majority support could be found. None of that need impinge on any existing provision of the Constitution that I know of. A state could do so now, I imagine; maybe Hawaii will someday.

The Constitutional issue in 1860 arose because the secessionists wanted a unilateral right to secede by a state’s mere motion. A state convention would meet, declare the state seceded, and that, as far as the secessionists were concerned, was sufficient to give full effect to the deed. But, in relation the Big-C Constitution, it did nothing, gave effect to nothing. The Federal government under the Constitution of 1787 rode on its own independent bottom of law, administration and taxation, depending in no wise on the continuing approval of any individual state. Its co-extensive claim of sovereignty did not depend on the opinions of officials of state governments, and the Federal government was required to give only limited respect to State claims or actions. Federal law, under the Constitution, was supreme over State law in all cases. Federal property was in most cases immune to State law and state taxation.

All the hoary myth-making of state sovereignty theorists never sealed the deal on how a state could give legal effect under federal law to its unilateral claim to have stripped the Federal government of Federal sovereignty over territory. The Federal government’s claims, and means of enforcing its claims, were independent of the State on nearly every relevant point of a State’s claims.

In the event — at least theoretically — the would-be Confederates could have asked Federal consent to a separation, but that would have conceded that Federal consent was required. They might have gotten it, given the hostility of some Northerners — I cannot pursue the counterfactual. My point is, that they didn’t want to ask; their theory, supporting convictions that rested on passionate self-regard more than dry history or legal texts, could scarcely conceive of asking for consent for a separation.

In the event, in 1861, in Charleston Harbour, in a situation that didn’t require anything more than the patience to wait for hunger for one last day, the Confederates under Jefferson Davis chose a contest of arms, as a means to compel Federal acquiescence in unilateral state secession.

In considering the Civil War as a constitutional crisis, the bombardment of Fort Sumter marked the key point of fracture, where the dispute became a contest of arms between two belligerents competing to defend rival claims of federal sovereignty under different though similar constitutions.

Unilateral secession was never Constitutional. I would guess that separation by mutual consent or even unilateral alienation of territory by the U.S. (as in say, a treaty settling a war lost to a foreign power) could be done in a Constitutional way, though the Constitution has no specific and explicit provisions directly relevant, but that’s irrelevant to a civil war. A belligerent’s conduct of a civil war cannot be constitutional.


John Quiggin 02.16.16 at 4:16 am

Most of the discussion seems to presume that the Repubs will act as a unified bloc. I don’t see this. All the candidates, and most of the rest, are committed to opposing anybody Obama propsoes. So, if someone like Srinivasan were nominated and confirmed, it would be with the votes of Dems + a small number of Repub defectors. That would sow the seeds of yet more trouble for the Repubs.


John Holbo 02.16.16 at 5:29 am

“Most of the discussion seems to presume that the Repubs will act as a unified bloc. I don’t see this.”

It’s an open question. Repub Senators are primarily concerned about being primaried from the right, and voting for any Obama nominee could be toxic. On the more moderate side, there’s Olympia Snowe and … just kidding, she retired!

No, seriously, Nate Cohn tried to game it out today.



Bruce Wilder 02.16.16 at 5:30 am

It also might mean that Obama has appointed a conservative to defend the plutocracy. That would call into question the legitimacy of the Democrats as a party of the left, and not for the first time.
The good cop / bad cop routine has worn thin in this election cycle. Both Parties and the country are in trouble.


RNB 02.16.16 at 5:48 am

@127 Well yes Obama was not able to appoint Goodwin Liu and many other judges due to Republican opposition. But he tried. The thing to do obviously would be to rout the Republicans in the upcoming Senate elections.


The Temporary Name 02.16.16 at 6:13 am

It also might mean that Obama has appointed a conservative to defend the plutocracy.

There’d be bleak comedy in nominating Ted Cruz.


The Temporary Name 02.16.16 at 6:16 am

I see BenK beat me to my apocalyptic vision. I bow in his direction.


Bruce Wilder 02.16.16 at 6:16 am

But he tried.

It is not always clear, in these choreographed displays, what he intends. When all the talk of multi-dimensional chess dies down, it is sometimes clear that he has advanced the cause of a reactionary, plutocratic politics.

I think Obama has done very serious damage to the Democratic Party and I would like to see this admitted openly by Democrats and their centre-left sympathizers. Obama appointing Srinivasan, a Republican-leaning jurist, is going to be bad for the Republicans we are told. Oh, really.


Maanen 02.16.16 at 6:28 am

It’s worth remembering that the current congress will still be around for a while when the election results are announced. So I can easily see them obstruct every nominee until the election is over and then rush through any centrist nominee if the new president is going to be Democratic. By declaring they will obstruct on principle Republicans can (maybe) avoid the kind of rabid bloviating that turns any candidate toxic, impossible to confirm without the base howling for blood. So McConnell’s game plan sure looks to me as getting a centrist on the court if a Republican fails to win the presidency. Sri has often been labeled center-conservative and if that’s true then he’s probably the best Republicans could wish for under plan B.

Keeping this in mind I think Obama should at minimum nominate a center-left candidate. If the Republicans still go bananas over a moderate, then it probably helps the Democratic ticket in the elections.


TM 02.16.16 at 10:55 am

Glen 118: Your distinction is artificial. “No, I wouldn’t say that Scott was seeking redress of the political situation, he did not petition to free all the slaves. He sued to vindicate his own rights, and was wrongly denied those rights”

But if the court’s decision had been just, the consequences would clearly have been political because it would have applied to many other individuals in similar situation. And that is very common for judcial decisions. Btw the court couldn’t have abolished slavery because at the time, there were no constitutional grounds for doing so. But the court could have held that non-slave states have the right to refuse recognition of the institution of slavery.

Keith 121: “Banning the sale of contraceptives even to married people is not any different if you assume a Catholic stance as the starting point”

The constitution precisely forbids the states to “assume a Catholic stance as a starting point” and it is precisely the Supreme Court’s job to uphold that constitutional principle.


Layman 02.16.16 at 12:58 pm

For me, the OP smells too much like Obama’s past attempts to be reasonable and find some way to make an agreement with Republicans in Congress. They all failed because the Republicans in Congress pay no penalty for simply obstructing. If anything, they seem to profit from it. What’s changed?

That aside, any successful nomination relies on 14 sitting Republican Senators voting for cloture. Can anyone name 14 who they think would so vote? I can’t.


Layman 02.16.16 at 1:01 pm

In fact, why not the obvious strategy? Obama offers to support (and sign) a bill destroying Social Security and Medicare, in return for Republicans agreeing to approve his nominee. Grand Bargain achieved!


Lee A. Arnold 02.16.16 at 1:41 pm

John Q. #125: “Most of the discussion seems to presume that the Repubs will act as a unified bloc. I don’t see this.”

John H. #126: “It’s an open question.”

My dear dudes, it’s already been answered.

Scalia’s mortalcoil-shuffle might look bad for the Republicans. And accordingly, the newspaper front-pages are currently falling all over themselves to explain it so. But it ain’t necessarily.

True, the Republicans in the Senate are damned if they do and damned if they don’t.

So? When you have lemons, make lemonade:

McConnell’s announcement effectively said, “We’re going to put a ‘hold’ on this, until after the election,” thus immediately signaling to his colleagues and the rest of the Party, what the game plan is now.

This allows the Republican campaign explanation to be, “Let the voters decide who’s President first, it’s for the g-g-g-good of the country!” You may have observed that within mere hours they started to espouse this gobbledegook. Signaling that their voters need to step up, to get another partisan jurist in there.

Most excellent politicking on Mitch’s part: lemonade.

So the “hold” could invigorate the GOP electorate at the very same time as it invigorates the Democrats.

Result? Almost a perfect wash: a net zero. (Doesn’t mean the Senate won’t go Democratic; there are still good math reasons.)

Question is how to swing it, from here to election. Repubs have been given their mantra and begun the chant.

The Democratic response, so far? A White House official immediately said that McConnell’s statement was “shocking”. More than a hint of that ol’ time, strong liberal irony.

But it’s led to the truly weak Democratic response, “B-b-b-but, Supreme Court nominees have been confirmed in election years before!”

Umm golly, that won’t convince anybody but the wet-behind-the-ears… For the 99% of us remaining, this seems without precedent: An iconic jurist kicking the bucket at the same time his worshippers are splitting into two species of nut. Arguing from precedent is, let’s say,… well I already said, um, weak.

President Obama must go with someone good for the country who is the antithesis of Scalia, a strong choice who looks good to Democrats, and is defensible by both Democratic candidates for President.

Choosing someone else, choosing someone whom the GOP ought to favor but won’t, (in order to further expose their hypocritical perfidy,) would be silly, useless, even politically counterproductive at this point.

Maybe, just maybe, Obama’s choice will pick-off some additional moderate Republicans who may be in the process of leaving the party — but that won’t be his prime concern.

Moderate Republicans, who include the realistic foreign policy wing, are presently likely to vote for Hillary anyway. They aren’t saying it aloud of course. Just get your coats quietly, and slip out the back door.

GOP is a bad party anyway, there are drunks falling all over, and in the last debate they started to pee on themselves. Get out of there, before those idiots burn down the house!


ZM 02.16.16 at 2:54 pm

Glen Tomkins,

“As to how US courts, at least at the highest level, became so political, the simple but uninformative answer is that they started deciding political cases. I assume from your dismay that Australian courts observe a certain jurisdictional modesty. SCOTUS doesn’t, at least not lately.”

The Australian High Court decides some important cases like the Mabo case about native title , and there have been cases about the treatment of refugees, and one about the federal government can’t fund Chaplains in schools.

But I don’t think it is so much that our High Court is more modest in its jurisdiction, I would think the jurisdiction was similar except our constitution is shorter and we have more received law possibly. In Australia I just haven’t noticed the idea that the High Court is political to the same degree and usually both sides of politics would respect the decision of the court once it has been handed down and I can’t quite imagine a comment thread like this here if there was a vacancy in the High Court.

I don’t think your idea of abolishing the States us very good, since losing a whole tier of government would be quite a big step. One thing we did in Australia was make the federal government the main tax collector, so then it has some oversight of the States in funding State spending programs which is I think technically extra-constitutional, possibly you could try something like that before trying to abolish the States all together so you only had local government and distant Federal government.


Icastico 02.16.16 at 3:08 pm

I would say the madman move is to nominate a sitting Senator.


Vasilis 02.16.16 at 4:22 pm

The suggestion itself and the elaborations offered throughout are monumentally naive politically and to the extent that any Democrat politician or operative thinks even remotely this way, it goes a long way to explain the long list of political losses suffered by a party that represents the economic and social views of a clear majority of Americans (according to most values/opinions polls). It is really astounding to consider handing one of the most coveted positions to Republicans just to show “bipartisanship” in freaking 2015. It is astounding that one would think that the R’s intransigence still needs be to demonstrated. And it is astounding that one can’t the see the obvious next moves (e.g. 65)

Coupled with the amazing suggestion for Posner, this tells me that JH is trolling the readership here or really wants Obama to nominate someone for laughs. Considering a strong, almost crazy conservative like Posner for his fun writing misses the real import of the SC to affect people’s lives. How can one seriously suggest giving up the fight and pushing the button and nominating someone who will through the Law create a society antithetical to one’s vision? Seriously now?


PeterR 02.16.16 at 4:49 pm


RNB 02.16.16 at 6:22 pm

The joke has been made many times already. By saying that Obama should cede his last year of power to make appointments to an incoming Republican candidate, the Republicans are implying that a Democrat President should get only three years of power, compared to a defacto five year term for a Republican. That is, the Republicans have reintroduced a new 3/5th rule, though one should remember that counting slaves as only as 3/5ths of a person reduced the total population size of the slave states and thus the number of representatives that their eligible white citizens could send to Congress. Counting slaves as whole persons would have increased the representation of white Southerners in the Congress, and that is what white Southerners wanted. In this case, not giving Obama a whole term stands in the way of progress.


Dr. Hilarius 02.16.16 at 6:34 pm

Calm yourself, Vasilis, at least as far as my Posner suggestion is concerned. My suggestion was meant to illustrate that the Republicans would reject any Obama candidate, no matter how solid their conservative credentials. I have no doubt that if Scalia was re-animated and nominated by Obama, the Republicans would block him as well.


Vasilis 02.16.16 at 6:41 pm

I don’t think that’s accurate. If Scalia was nominated, he would be confirmed. Same with, say, Cruz.


RNB 02.16.16 at 6:46 pm

Interesting distinction between law/rule and a norm:
if the American electorate expects the Senators to respect the norms for appointment to the extent that they will punish those who brazenly transgress it, then perhaps Obama can make a successful appointment by winning over a couple of Republican Senators. Very doubtful though.


RNB 02.16.16 at 6:57 pm

Anyone nominated by Obama becomes a Muslim socialist sleeper agent, no matter what people thought of them before. This would go for Scalia and Cruz. You really need to pay attention to what is going on among the right-wing electorate. The chief birther is leading the nomination race (he may also be a 9/11 Truther, but that is another matter). This Obama hate knows no limit.


Kalkaino 02.16.16 at 7:12 pm

I like Pierce’s idea: Anita Hill. She wouldn’t get through but boy could we ‘relitigate.’


The Temporary Name 02.16.16 at 7:14 pm

I don’t think that’s accurate. If Scalia was nominated, he would be confirmed. Same with, say, Cruz.

See, here I think Cruz is hated enough that an agonized Senate would vote him down. There’s no way in hell I’d want to test that other than in my dreams.


Glen Tomkins 02.16.16 at 8:17 pm

ZM @137,

I guess I need to clarify what I mean by “political cases”, since there is this tendency for people in the US to complain about “activist courts”, like the Warren Court, invalidating statutes (usually state level statutes) that deny individual rights, and then the complaints become the politics in question, and then the courts are blamed for making a technocratic decision over something that is so obviously political.

For example, the legitimate public policy reason for govt to prohibit abortion disappeared when abortions became safe. At that point, the individual rights of women were being denied by religious and moralistic beliefs that do not constitute a legitimate public policy concern, therefore all the laws prohibiting abortion were struck down in Roe v Wade.

What I mean by such an issue being non-political is that after the legitimate public policy concern disappeared, whether or not a woman chooses abortion should have no longer been a political question, one subject to the majoritarian tyranny of legislative fiat. Where roads go, how big our army is, where we invade next, how elections are conducted, etc., etc. — these are legitimately political questions, questions that have to be left to the will of the majority. But individual rights whose exercise does not harm the public should never be subject to the whims of the mob. The govt should be compelled to show a clear public policy need for any law that denies rights to individuals.

Roman law has a clear distinction between ius and lex. Ius involves everyday criminal and civil law governing the interactions of individuals. It arises by induction to general principles from individual cases tried in courts of law. Lex is all the legitimate work of govt, where roads go, etc. It is determined by legislative acts.

Of course you can’t categorically disentangle the two. In particular, any govt action, as determined by the law in the sense of lex, has the potential to infringe on individual rights under ius, the common law.

Now, of course, about two seconds after Roe v Wade was handed down, abortion rights did indeed become political, in the sense that they became a hot issue for mooks on the right to run on. One problem we have here in the US, not clear how much a problem it is in Australia, is that we have 50 legislatures sitting around with little better to do, with little other way for a legislator to earn distinction, other than by leading the lynch mob against the hated minority du jour. So of course we have had a raft of continuing, endless attempts to punish those loose women who want abortions.

While it may be impossible in principle to always distinguish the legitimate scope of legislatures, one simple rule gets at most of the common, and dangerous cases of legislative overreach into what should be apolitical, not subject to majoritarian tyranny. Is the govt in question trying to deny rights to individuals for reasons other than concrete public need? If the govt wants to take someone’s land to build a highway, that’s clearly lex, unless the individual whose land is being taken can demonstrate that the legislature doesn’t really want or need the road for the public good, but because they are pursuing a vendetta against the individual. If the govt wants to deny gays the right to marry because it needs to protect something something sanctity of marriage, that’s a case of legislative overreach. An issue not legitimately political is being wrongly subjected to majoritarian tyranny.

So, what I mean by SCOTUS taking political cases, is Bush v Gore, and CU, as the clearest examples.

You can look at CU and see that to misunderstand campaign finance laws as legislative overreach, you have to frame the issue as if it did involve the rights of individuals being encroached on by the legislature. The decision had to pretend to take seriously two laughable ideas, that corporations are individuals who have political rights, and that money is speech.

Campaign finance laws are about as pure lex as you can get, as the cleanliness of the process by which we choose public officials has an obvious, foundational, public policy importance. The need to at least tamp down a system of legalized bribery is an obvious need, certainly compared to the need to something something sanctity of marriage. When SCOTUS decided that protecting the poor harassed virginal purity of the sacred right of corporations to use money without restraint as if that’s free speech, outweighed any concern that maybe, you know, legalized bribery may not be a good idea, it was obvious that this was clear judicial overreach into legislative territory, a court pretending that a matter of lex was a matter of ius.

Do Australian courts do lex? Have they tried to hand an election to anyone lately? If not, please understand why we get a bit strange and unsettling and rantive in our discussion of this topic over here in the US.


Glen Tomkins 02.16.16 at 8:46 pm

TM at 133,

As I say, you can’t always cleanly disentangle the two. The practice of judicial modesty would indeed involve judgment on a continuing basis, see my last @147 for an idea about what a differentiating test might look like. I think it’s pretty much what actual jurisprudence requires.

Sure, the Scott suit had wider implications. That’s why abolitionists were attracted to supporting the suit, advancing it as a test case. My point is that people at the time, even those inclined to favor the result reached by Taney, were surprised that the case wasn’t settled on narrower grounds, that Taney went deep into issues not raised at all by either party to the suit to issue a much broader decision than the case called for.

Like slavery or the opposite, the hope is that a judge will decide a case on its own terms. If the wider outcome in other cases is that slavery the institution is weakened, well, that’s the law. When a judge goes out of his way to bring in issues irrelevant to the case in order to serve what he imagines to be some general good that the law doesn’t actually protect, and thereby does injustice under existing law to an individual, that judge has politicized the process illegitimately.

Part of your point seems to be that it could have gone the other way. Nothing in Scott’s suit would have led to a decision that slavery was illegal or unconstitutional, but maybe we should let judges riff away in hopes that sometimes they will give us an illegitimate but just outcome like ending slavery.

Well, one answer to that is that a judgeocracy is always going to have a bias towards comforting the comfortable and afflicting the afflicted, because we choose our judges from among the tribe of the relatively comfortable. Don’t count on a Warren Court, because mostly you are going to get a Taney court. And if you institutionalize a judgeocracy, you practically guarantee the corruption of absolute power.

But the more germane objection I have to your idea that the courts might have ended slavery on a lark, willfully, if given a chance, is its implication that that’s what we owe all the decisions of the Warren Court to, that’s what we owe the gay marriage decision to, judges who just chucked settled law and decided to play Santa Claus and comfort the afflicted, the law be damned. No, every single one of those good decisions was also legitimately arrived at. Reality had changed out from under settled law, and the law has to change to keep up our evolving understanding of the world we live in. When most of us, in our ignorance, believed gay people to be child molesters, of course the law would never recognize any sort of human rights for gays. When that understanding changed, when the ignorance lifted, of course the law had to change. But it changed in accordance with settled principles of law, not on some generous whim.

There was no chance a court in Taney’s day would end slavery by judicial fiat, because the ignorant belief in black inferiority was too widespread. Had equality been recognized, of course the end of slavery would have followed. But what a court even in that era could do that Taney failed to do, was simply do what the law told him to do to respect what lesser dignity could possibly be accorded to a black person before his court. He sold out his duty to that individual out of loyalty to a system, a corrupt way of life based on slavery, that the law never instructed him he needed to protect. That’s what I mean by a politicized decision.


geo 02.16.16 at 10:52 pm

Glen @148: Reality had changed out from under settled law, and the law has to change to keep up [with] our evolving understanding of the world we live in

I don’t understand how you square this with your call for judicial modesty. Haven’t you been arguing all along that it’s for the relevant legislature, not the courts, to decide when reality has changed and then to change the law to keep up with it?


The Temporary Name 02.16.16 at 11:48 pm

Some laws are plants, some laws are weeds.


gbh 02.16.16 at 11:55 pm


We hear this a lot, about fear of a challenge from their right. But after all they do have to face a general election candidate that is a D. So, at some point, even with highly gerrymandered districts, there are bound to be a few R’s that might feel compelled to consider breaking ranks as the most pressing need. Or at least, that is not out of the question.


Glen Tomkins 02.17.16 at 12:00 am

geo 2150,

No, what I’ve been arguing is that some issues are legitimately subject to majoritarian tyranny, and some aren’t. Legislatures should only decide issues, such as where roads go, what taxes we have, etc., that require the will of the majority to prevail. There is no need for the will of the majority to prevail in the question of abortion, or the question of gay marriage. I believe the legal concept is that the state needs to show a compelling public policy interest to justify denying rights to individuals, it has to show that some public interest would be compromised if the rights were allowed.

What I mean by reality changing out from under previously settled law, is just that the common law is based on our common sense of what is right and wrong, and more particularly what we as a society are allowed to do in terms of bringing the weight of the law down on others to protect our common interests. That common sense is in turn based on commonly accepted beliefs about how reality works.

If we go back 200 years, there was no word for “homosexuality, and term only invented in the 1890s. The vast majority of people did not know anyone who was gay, or at least didn’t know that they knew any such person, because gay people had to be very circumspect to survive. The only people we now might think of as gay who ever came to public attention, were people who committed sodomy. My understanding is that sodomy was first identified as a crime at the time that the common law came to be more thoroughly documented than had previously been the case, in the reign of Elizabeth I. Now, the name, taken from the Bible narrative of Sodom and Gomorrah, implies that the crime in question is that of rape, homosexual rape. It seems perfectly reasonable to me, a gay man, that people would imagine that homosexual rape is a pretty heinous crime. I’m glad we have laws against such a thing. But if the only gay men you that you know exist are the ones that their victims complain have raped them, then your view of the reality we all live in is that same-sex relations are inherently rape, or at the least submission/dominance. (This is similar to the problem of the only Muslims that most Americans know exist are Muslims who bomb things, because that’s all the media is interested in). Of course in such a reality gay men are not going to be granted the right to love one another, because that is not conceivable to people who are convinced that all gay men are rapists and child molesters. Of course there’s a clear public interest in such a world in putting all gay men you can find behind bars, before they get at your children.

That view of reality has been changing steadily for over a century. Once it reached a certain point, once enough people stopped believing that gays are all, or even have any unusual propensity, to be rapists or child molesters, the legitimate public interest in criminalizing the gay disappeared. And when this view of reality disappeared, when all that was left of it was pathetic nonsense about govt recognition of marriage somehow carrying some sort of metaphysical seal of moral approval — patent nonsense for an institution that confers community property and joint filing status — of course the courts had to send its legal manifestations to the trash heap.

I can’t see why anyone would want to locate the reality-determining function for our society in legislatures, except where we have to, in matters of public policy, where the roads go, what we do about climate change, etc. I have infinitely greater trust in the common sense and common decency that is the basis of common law when that is allowed to function properly.

That said, part of the problem of distinguishing between ius and lex, matters that legitimately should be decided by majoritarian tyranny vs all the rest, is that we blurred the distinction a century and a half ago with a mania for codification of the common law. Murder isn’t really illegal because some legislature decided it should be illegal, but because judges and juries way back when, long before English was even a written language, used common sense and common decency to decide that murder would be a crime. Sodomy was only a crime in the past because the people of that day let their common sense and common decency be guided by tragically flawed ideas about the reality of human sexuality. We should not have had to wait on majoritarian tyranny to decide when it would be convenient for the usual assholes in our legislatures to give up a favorite hated minority to torment. Judges gave us sodomy, and it was only right that judges should sign sodomy’s death warrant.


bob mcmanus 02.17.16 at 12:14 am

So, at some point, even with highly gerrymandered districts, there are bound to be a few R’s that might feel compelled to consider breaking ranks as the most pressing need. Or at least, that is not out of the question.

“gerrymandered districts?” SCOTUS not much of a problem in the house.

I think McConnell came out fast in order to take the problems (Democratic and Tea Party opposition) away from those “moderate” Senators. Now they can say:”What can I do, the leadership won’t allow a vote.” They can try to placate both sides


Glen Tomkins 02.17.16 at 12:18 am

Ze K @150,

Sure, we’re limited in practice to what currently constitutes the common sense and common decency of most of us in a given society. I can’t give you a system that will produce results better than you and me and the rest of us, because until and unless some Higher Power descends to tell us what to do, you and me and the rest of us are the best we’ve got.

I think we can say after millennia of experience, that the one solution we don’t want to go with, is listening to people who assure us that they know exactly what the Higher Power wants us to do. Aside from observing that rule, we just muddle through.

Sorry to respond in bromides, but I’m not sure what your objection is.

I think it is fair to say, that we have muddled through recognizing some common ground, that we have never actually been in Ayn Rand territory, with the closest being cases like Somalia and Lebanon at their worst, which an overwhelming majority of us recognize as counter-examples because the reality of “no rules” is not nearly as neat and pretty as an Ayn Rand novel.

I believe in moralistic beliefs that work. Theocracy doesn’t work, libertarianism doesn’t work. The mongrel of a non-system we have mostly let’s us muddle through, so it has my loyalty.


geo 02.17.16 at 12:18 am

I see. Just trust “common sense and common decency,” based on “commonly accepted beliefs about how reality works.” Yes, that sounds airtight.


The Temporary Name 02.17.16 at 12:27 am

GBH, what Bob means is that senators are doing the deciding. Senators are two to a state, so inequality is already baked into the cake in perpetuity, what with Wyoming having the same say as California. There is no more (or less) gerrymandering to be done.


Cranky Observer 02.17.16 at 12:39 am

“If we go back 200 years, there was no word for “homosexuality, and term only invented in the 1890s. The vast majority of people did not know anyone who was gay”

And no one from that time period ever read between the lines of _Moby Dick_, or any of Meleville’s seafaring novels, the way we can. The acknowledgement and/or acceptance of male/male relationships has varied up and down over thousands of years (that we have record of). Which essentially points out the hollowness of the “words have fixed meaning” argument – the scholars who wrote the Constitution of 1787 were certainly aware that societies changed over time since they had studied that point among others.



derrida derider 02.17.16 at 1:16 am

Y’know, I think Obama has indulged in unprincipled betrayal of his supporters. In fact I think Obama is what his opponents used to decry him as (before they moved to the deranged lengths of Birtherdom) – a ruthless and streetwise Chicago operator.

Which is why I think that whatever he does from here will – surprise, surprise – somehow end up making the Repubs look really bad and materially help Hillary’s election. Whether it gets a good justice onto SCOTUS is another question, of course.


Glen Tomkins 02.17.16 at 1:25 am

Bruce Wilder @124,

I have the idea to Balkanize my response, to deal with just one aspect at a time, in hopes that will curb my tendency to rant.

I think it’s reasonable to take my first stab at responding to what you have written by asking about the context. My point was that compared to earlier times, such as 1860, we are much more ready today to defer to SCOTUS to settle issues.

You present a thoroughly reasonable argument against unilateral secession. The secessionists had an answer for your argument, but save that for later. You identify this question of the legitimacy of secession as a constitutional question. Why, in the name of all that’s holy, when the alternative was to settle this question at the price of a half million lives, did they not turn to what we today would automatically consider the designated constitutional law expert, SCOTUS, to settle this con law question?

If this issue were to arise tomorrow, none of the actors would be able to get away with not referring the question to the courts. The unthinking assumption today is that it’s the courts that do con law.

You claim that the secessionists could not concede that asking the US courts would have been legitimate. Perhaps there would have been some price to pay in terms of ideological purity, and that would be more important to a nascent govt, unsure and therefore jealous of its legitimacy. But the fire-eaters in fact did in fact accede to all sorts of ideologically impure actions. They recognized the utility of pushing politicians like Davis and Alexander Stephens, who had been against secession until their states seceded (Stephens was the most prominent speaker against secession at Georgia’s secession convention, Davis was less up-front in his opposition) into the leadership of the Confederacy. They sent commissioners north to treat with the US govt about just such a deal over secession as you imagine them to have rejected categorically. They negotiated with border state legislators, most prominently Senator Crittenden, to push a deal in Congress that would have exchanged secession for concessions. While it is true that none of the already seceded states sent delegates to the peace conference of February 1861, states that seceded later were there and did try to broker a deal.

The seceded and soon to be seceded South made these efforts in forums unlikely to give them more than some half a loaf compromise, yet they passed up the chance to get the Taney court to bless secession? Perhaps there might have been questions of the standing of a foreign power, such as the Confederacy claimed to be at that point, that did not have relations with the US, as the Confederacy never did, being allowed to sue. But surely states like Virginia, states that only seceded later, had standing to sue. And good Lord, why not sue if that was a real possibility in 1861, because had the SCOTUS decision gone anything like Dred Scott, Taney would have given the South more than it was asking for — independence, more than its share of the territories, extradition of fugitive slaves. You name it, what would Taney not have given them?

And had it been possible to sue in court over such a question in 1861, it follows that Lincoln would have been compelled to follow the ruling of the court.

That’s not an unreasonable first approximation of an answer as to why Lincoln failed to bring suit over this con law question. He probably would have lost the suit, and then not been able to prosecute a war. But if this were to happen today, can you imagine a president starting a war, invading several states of the Union, for real this time, not Jade Helm, unless there was a true emergency, without going to the courts? Would people, even people who believed solidly in preserving the Union, tolerate a president acting without consulting what we now think of as the con law authority in the US, SCOTUS?

I guess that what you say about Sumter is some sort of answer to this point, that the Confederacy firing on Sumter created an emergency. Except that it didn’t. All sorts of federal facilities were taken over by force long before Sumter. This thing went on for months before Sumter. And Sumter was lost before anything could be done to change the tactical situation at Sumter, so it’s not as if it created an emergency situation in which a military response was needed before armies could be sent south. These armies weren’t ready to go for months more anyway. And even if it had been necessary and possible to continue hostilities before consulting SCOTUS, why not push such a case while hostilities were ongoing? Sure, fear of losing the case. But nowadays Congress thinks it needs a court order to get the president to turn over tapes. A civil war is some minor thing in comparison?

It’s not exactly to the point of this bit of my response, but as long as we’re on Ft Sumter, an excellent illustration of how different we view the question of authority on constitutional questions is provided by both sides’ approach to Major Anderson. As I pointed out, many, many federal facilities and units of federal troops had previously been surrendered by US Army commanders. No doubt their decisions, in practice, were largely of a “better part of valor” nature. But at least the fiction was maintained in most cases that these officers and gentlemen only acceded to demands to surrender their facilities because they had looked at the Constitution, specifically Art IV, sec 4 (of which more later), and decided that a state had the con law right to demand the federal govt surrender any state land it had previously purchased from that state. Buchanan, and even Lincoln initially, decided not to send Major Anderson direct orders to refuse surrender, because a clear directive would have triggered his need to come up with a con law answer, and since he was from Kentucky, no one was quite sure what that answer would be. The Confederate commanders faced the same dilemma. Demand surrender, and if Anderson’s con law deliberations came to the wrong result, he would announce against secession, and the US govt would be free to send him resupply and reinforcement. They waited until they had brought in big rifled guns with range enough to compel surrender, before they asked for surrender.

I retired from the Army as a LTC(P). The idea that field grade officers once had as an additional duty con law decisions has always jazzed me. Who needs SCOTUS when you have a Major at hand?


Glen Tomkins 02.17.16 at 1:26 am

geo at 157,

You got a better idea?


ozajh 02.17.16 at 2:55 am

Leaving aside the incendiary rhetoric, I am surprised no-one has reflected on the underlying issue for binary polities which is demonstrated here. In fact, I would have thought that there would have been at least one post on the subject long before now.

One side of politics (the right-wing) in the United States has recently instituted full party discipline, or very close to. This happened in Australia about a century ago (and in their case it was the left-wing that initiated the process). The same thing happened in the UK somewhat later.

Once this has occurred, the other side is forced to follow suit sooner or later for sheer survival, so in both Australia and the UK we now have total domination of the political process by entities (political parties) who aren’t even mentioned in constitutional documents.

I predict the same process will play out in the US. What we currently see with respect to replacing Scalia (and many many previous instances since President Obama took office) is the fundamental inability of the US system to handle a situation where one side of politics routinely doesn’t compromise. I suspect that within my expected lifetime we will see the same level of intransigence applied to a Republican President by a Democratic Congress.

Things are going to get (possibly much) worse before they get better, because there will need to be major changes to the US system of Governance to allow it to function in the new reality.


The Temporary Name 02.17.16 at 3:55 am

I predict the same process will play out in the US.

Predicting a two-party system seems a little easy.


Val 02.17.16 at 4:03 am

I don’t follow US politics very closely ( I follow them, as I guess most of the world does, but not in minute detail) so I only just realised from this summary by Brian Bahnisch –


– how important Scalia’s death was in regard to Obama’s EPA regulations and potentially to the success of the Paris Agreement on climate. Probably most of you know this, but it seems that if Scalia is not replaced the decision by the lower court to let the EPA regulations stand will be upheld as there will not be an SC majority against it (if I have understood correctly).

That being the case, why would Obama really care about getting a new appointee accepted? If the court is at a standstill, his EPA regulations are upheld and the US (at least for the time being) is seen to make a contribution to reducing worldwide carbon emissions, right?

It seems like that would be a much more important legacy for a second term President than getting his appointee on the Supreme Court.


Val 02.17.16 at 4:06 am

Sorry my link in the comment above was wrong (it was a link to someone’s comment about local Oz politics) the correct one is here


The Temporary Name 02.17.16 at 4:07 am

The cases will still come. The legacy of one court case at one time will pale next to, say, 30 years of decisions following that.


Val 02.17.16 at 4:13 am

I guess so. But at least Obama would not have to see his attempt to save the world from climate change undone during his own Presidency.


The Temporary Name 02.17.16 at 4:24 am

If he doesn’t nominate, the case stalls (and people start shopping for courts that generally rule the way they like anyway if they anticipate split SC votes). If he does nominate, maybe he gets a judge along the lines of his other nominees. More likely he gets a chance to demonstrate why Republicans are in the way, which is shitty but it isn’t nothing in an election year.

It’s not like Republicans get to nominate the judge THEY want, unless President Trump happens, and who knows what kind of judges he’d like. Famous TV judges?


RNB 02.17.16 at 4:42 am

@160. Please stop blaming Obama for what we are seeing. Most pundits and even intellectuals seem unable to tell the difference between economic populism and a Klan rally. Or, to put it another way, they would go to a Klan rally and report the underlying economic anger and join in calling out political elites for creating it. Trump is leading Klan rallies across the US. That’s the sum total of it.

From what I have read and heard, Clinton has been much clearer about calling out Trumpism for what it actually is and critiquing it root and branch than even Sanders has. She even refers to white privilege.


Keith 02.17.16 at 4:45 am

TM at 133; No The Constitution should be what it was in 1787 Scalia says from heaven ( or hell more likely). If you reject “incorporation” the separation of church and state only binds the federal legislature as in 1787. Or just say argue as Scalia would that all morals come from our shared judeo christian tradition and so states should ban un moral ideas like artificial contraception. Universal Law exists prior to legislation but legislation to enforce universal law may be required. If five of the nine agree that the pope is the real source of all Laws like Scalia you can ban everything the Pope forbids, problem solved!
You just have to fins enough deeply nasty people to put on the bench.


Keith 02.17.16 at 4:47 am



Keith 02.17.16 at 5:00 am

And I am not convinced there is a theory to really decide what should be settled by courts and what by Politicians. It seems to me that culture just evolves and revises what is controversial. Politicians in other countries with parliamentary systems introduced liberal reforms as these had become acceptable to the elite. Roy Jenkins introduced the permissive society as he thought it was “the civilised society”. The American elite seems stuck in the past or just wants to pander to those who are.

On the other hand if Slavery could have been abolished by court order in 1860 or before that would have been better than having a civil war.


The Temporary Name 02.17.16 at 5:02 am

On the other hand if Slavery could have been abolished by court order in 1860 or before that would have been better than having a civil war.

The south attacked the north before there was any decision along those lines, legislative or otherwise. You’d get the war just the same.


TM 02.17.16 at 8:53 am

Glen 148, this clarification helps. I agree with the gist of your distinction but there will never be agreement as to what is and what isn’t legitimate public policy.

Btw your references to slavery and Dred Scott precisely show the limits of your argument. Surely, the preservation of the institution of slavery doesn’t fall under your definition of legitimate public policy?


gbh 02.17.16 at 10:59 am

TTN and Bob.

You guys are right on that.


ZM 02.17.16 at 12:14 pm

Glen Tompkins,

“What I mean by such an issue being non-political is that after the legitimate public policy concern disappeared, whether or not a woman chooses abortion should have no longer been a political question, one subject to the majoritarian tyranny of legislative fiat. Where roads go, how big our army is, where we invade next, how elections are conducted, etc., etc. — these are legitimately political questions, questions that have to be left to the will of the majority. But individual rights whose exercise does not harm the public should never be subject to the whims of the mob. ”

In my State in Australia, Victoria, that is not the case legally.

We had the Abortion Reform Act 2008 which regulated abortions and stopped abortions being an offence under the common law, not through a court decision at all.

You might think that 2008 was very late to be making abortions legal in Victoria, but this is as we had several years where women had abortions using a particular law that allowed abortions for the health of the woman. So women got paperwork saying they needed an abortion for their psychological health and got abortions legally for all those years. It was decided in 2008 that this legal grey area should be addressed, and then there was the Abortion Reform Act 2008.

As you can see, in Victoria abortion is considered something that can be allowed and regulated by statute.

We also get Roman law as received law from England, but as you can see this issue was dealt with quite differently here than in the USA and not resolved by the courts.

“If the govt wants to deny gays the right to marry because it needs to protect something something sanctity of marriage, that’s a case of legislative overreach. An issue not legitimately political is being wrongly subjected to majoritarian tyranny.”

This is also not the case in Australia. Gay marriage is currently illegal. Our liberal government has decided “majoritarian tyranny” (they don’t call it that though ;-) ) is the best way to deal with the issue, and so they have said we will have a plebiscite where the population of Australia can vote on whether to legalise gay marriage and the outcome will prevail and be made into law.

“So, what I mean by SCOTUS taking political cases, is Bush v Gore, and CU, as the clearest examples.
You can look at CU and see that to misunderstand campaign finance laws as legislative overreach, you have to frame the issue as if it did involve the rights of individuals being encroached on by the legislature.

Do Australian courts do lex? Have they tried to hand an election to anyone lately? If not, please understand why we get a bit strange and unsettling and rantive in our discussion of this topic over here in the US.”

Yes, in Australia we recently had issues with the counting of votes in the Western Australian Senate Election. This was a great scandal here.

This went to our High Court, which is a federal court like your Supreme Court, and the High Court invalidated the election results.

But our High Court very properly said that the election had to be run all over again. And Western Australia had to have another Senate election where the votes got counted properly.

As you can see, on the issue of abortion, gay marriage, and election scandals we don’t have a problem with politicised courts in Australia as much as you. This is why I think a comment thread like this would not happen if there was a vacancy in the Australian High Court.

What I don’t understand is why your Supreme Court is like this, but our High Court is not, when we both get Roman law and other laws as received law from England, and we both have a federation and the Supreme Court and High Court seem to be similar institutionally?


ZM 02.17.16 at 12:28 pm


“That being the case, why would Obama really care about getting a new appointee accepted? If the court is at a standstill, his EPA regulations are upheld and the US (at least for the time being) is seen to make a contribution to reducing worldwide carbon emissions, right?”

The Our Children’s Trust organisation has a Federal court case in Oregon, which might eventually come before the Supreme Court to decide whether the government is required to act on climate change.

But I think it still is strange that appointments to the Supreme Court should be made based on what judgement they are likely to make in upcoming court cases. I think it should be made more based on their knowledge of the law and good decision making in court cases thy have decided.


Yama 02.17.16 at 4:55 pm

RNB 02.17.16 at 4:42 am
“She even refers to white privilege.”

And thats why she will not be getting votes she would otherwise have in the bag. We do not need to encourage the hate group sponsered by the left.


Sebastian H 02.17.16 at 5:29 pm

“But I think it still is strange that appointments to the Supreme Court should be made based on what judgement they are likely to make in upcoming court cases. I think it should be made more based on their knowledge of the law and good decision making in court cases thy have decided.”

This is an example of foreigners not understanding how crazy the system as gotten in the US. We have essentially stopped formally amending our Constitution, and now only our judges get to amend it. But when 5 unaccountable life appointees have license to amend the Constitution things get crazy when one of them dies and needs to be appointed.

The obvious answer is to go back to a norm where amendments to the Constitution go through the amendment process, and judges encourage that or wait for it, but neither side is going to unilaterally disarm on that.

Historically I think what happened is we were in a true emergency situation over the Jim Crow south and the Supreme Court stepped in to save the country and with arguably strong support from the civil war amendments. But instead of seeing that as a scary brush with institutional crisis that was to be avoided, both sides decided that it provided great tools for destroying the other side on the hard questions. The Supreme Court always had strong political elements, but the new approach transformed it from a Court with political components to a completely political organ. The problem is that life tenure doesn’t go well with completely political organs. (And it isn’t clear why a completely political organ should be allowed to overrule Congress).

As flawed as the textualist arguments are, the liberal jurisprudence arguments are much worse. The explictly want the Supreme Court to be a political organ. But that is a bad idea. We would be better off with no Supreme Court at all and Congress doing what it wants than the Supreme Court as a purely political organ.

(That wouldn’t be my preference BTW. I would prefer the Supreme Court to go back to being more of a regular court with the bog standard contract interpretation style of interpreting a document [rules like you don’t interpret phrases to mean ‘nothing’ and you don’t interpret things to mean the opposite of what everyone at the time understood them to mean].)


Gerald 02.17.16 at 5:45 pm

True THAT!


Bruce Wilder 02.17.16 at 6:11 pm

Having a ravening plutocracy dominating the politics of the country means there will be some unpleasant disputes. Arguing about whether you want the Justices of the Supreme Court or the Chairmen of Congressional Committees or the Presidents of Business Corporations to destroy all that is good and decent seems to miss the big picture.


John Quiggin 02.18.16 at 12:42 am

The Repub stance “reject any nominee so we can get an originalist like Scalia in 2017” can be summed up as “we have to destroy the Constitution in order to save it”.


geo 02.18.16 at 1:47 am

Sebastian @180: We have essentially stopped formally amending our Constitution … The obvious answer is to go back to a norm where amendments to the Constitution go through the amendment process

Yes and no. You’re certainly right that the Court ought to be constrained by a constitution, which is a social compact, a statement of consensus, an expression of a nation’s most basic political vision and values. Of course it’s absurd not to expect the social consensus to change in important respects over 250 years. As you say, that’s what the amendment process is there for, and if it worked, the Court would not have accrued as much power as it has.

But it doesn’t work. It’s reasonable enough in principle that supermajorities should be required in order to compass fundamental changes. But the amendment process, like the Senate and the Electoral College, and above all the campaign finance system, the major-party duopoly, first-past-the-post vote counting, and the concentration of media ownership, was designed to make popular deliberation rare and ineffectual.

The explicit premise of every political argument nowadays has to be that contemporary America is a thoroughly undemocratic society, very efficiently administered and controlled. This doesn’t mean that fundamental change is impossible, though it will probably require generations. But it does mean that debating theories of constitutional jurisprudence is somewhat beside the point just now.


Roger Gathman 02.18.16 at 1:51 am

It would be nice to amend the constitution to kick the Scotus out of its position as the supreme constitutional authority. That’s a huge mistake. We need a committee to give the constitutional approval to laws before Pres signs them, like they do in France, and that’s it.


Sebastian H 02.18.16 at 1:56 am

Ok, but is it really a strong argument that if have trouble getting crucial amendments through (which by the way is mostly untested, there haven’t been dozens of failed amendments in the last forty years) we should just let the judges decide, and if we don’t like their decisions just wait until they die? That seems rather dangerous.

“As you say, that’s what the amendment process is there for, and if it worked, the Court would not have accrued as much power as it has. ”

Why are you so sure? It is no harder to pass amendments now than it used to be. We haven’t even tried more than one in my lifetime. We don’t try because the Supreme Court does it for us. It is a vicious cycle of compounding anti-democratic moves by the Court again and again and on thinner and thinner reeds of argument.

The problem is that every step seems ‘too hard’ so no one tries it. Like running a socialist or telling the Republican Party that the Iraq War was a horrible waste.

Yet when people do try these ‘too hard’ things, it looks like sometimes there is a response. The problem is that THE ESTABLISHMENT won’t try these things for various reasons having to do with their own power. The problem isn’t that they are ‘impossible’.


geo 02.18.16 at 2:21 am

The thrilling optimism of youth! You have my blessing, youngster.


ZM 02.18.16 at 5:07 am

This is not a difference with Australia that would account for the politicisation of your Supreme Court.

It is well known changing the written constitution is difficult in Australia, (we have received law constitution law as well which is unwritten coming from England) we have to have a referendum, and it has to pass with a majority in the federal electorate and get a majority vote in a majority of the States as well.

We have had 44 referendums since federation in 1901 and only 8 succeeded , we are averse to changing the constitution generally speaking. Our next one is likely to be about Indigenous Recognition and we have been discussing this for a few years now already.

So the difficulty of changing the constitution can be ruled out as a reason why the US Supreme Court is more politicised than the Australian High Court I think.


Glen Tomkins 02.18.16 at 7:01 am


In my first response, I discussed this fact, the failure, what is to us the strange failure, of either side of the dispute over secession’s legitimacy to bring that dispute to the courts. You presented the dispute very cogently as a question we would now recognize as a legal question, a question of constitutional law. Why didn’t people in 1860 see it that way?

The closest they came was in talking about secession in analogy to divorce. The Union was the marriage, and the seceding states wanted the divorce. In those terms, your argument would presumably go something like this, that the seceding states wanted their divorce, and to keep some share of the community property, but wanted a unilateral divorce, a divorce without the consent of the spouse. Now, in those days, divorce was a bit déclassé, so this was a favorite analogy for Union supporters. But secessionists could and did come back with the observation that while it took both parties to make a marriage, divorce requires only one of them to demand a break-up. And, as I pointed out last post, it’s not as if the seceding states went beyond asserting the right to demand a divorce, and then further into some idea that they should be able to unilaterally decide on the disposition of the community property. They were willing to talk about that. Not such property as lay within their own states’ boundaries it is true, they seized that, but leave that discussion to next posting.

But if both sides could see divorce as a reasonable analogy, why did they not take the analogy the next step, and, just as a couple divorcing because at least one of them demands it goes to divorce court, why did the states not head to disunion court? They accepted the analogy of their situation to something, like divorce, governed by law, but then failed to follow through on that insight by going to law, instead of to war.

The longer answer is that people at the time thought that the states and the federal govt related to each other basically, foundationally, as foreign powers relate to one another, not as citizens within one state relate to each other, under the laws of that state. They didn’t have a divorce court to resort to, and the only way to settle disputes was by force of arms. But leave that longer way to next posting and the discussion of nullification crises.

The shorter way forward is to look at the shorter history of secession I our history. Maybe we have a Hawaiian secession in our future, but in 1860, we already had a successful secession in our past.

The Articles of Confederation had a provision that the Union the thirteen former colonies had signed onto, was to be perpetual and indissoluble. There was an explicit provision against secession. Not only did all thirteen break that promise when they jumped ship to ratify the Constitution, they did so unilaterally, without negotiating the fact or the terms of their secession with the confederal govt from which they were seceding.

You’re right that the Constitution is silent on the question of secession. But if it was legitimate to secede from a constitution, the Articles of Confederation, that wasn’t silent on the subject, that explicitly forbid secession, how could it not be even less problematic to secede from a later version that, perhaps out of shame at making earlier promises that the states couldn’t keep, modestly omitted such promises?

If you left one covenant marriage, maybe next time you’ll settle for a marriage with a divorce provision. Is the Constitution really without a divorce provision, as you claim?


TM 02.18.16 at 7:53 am

184: “America is a thoroughly undemocratic society, very efficiently administered and controlled”

The part “efficiently administered” is somewhat disputable.


CJColucci 02.18.16 at 4:17 pm

But if this were to happen today, can you imagine a president starting a war, invading several states of the Union, for real this time, not Jade Helm, unless there was a true emergency, without going to the courts? Would people, even people who believed solidly in preserving the Union, tolerate a president acting without consulting what we now think of as the con law authority in the US, SCOTUS?

I can, and I am not known for my imagination.


geo 02.18.16 at 8:22 pm

TM @190: Really? From the point of view of the financial, defense, energy, pharmaceutical, chemical, software, entertainment, advertising, hospital, insurance, and correctional industries, the national security bureaucracy, and salaried or self-employed professionals in the top 5 percent or so of the income scale, how could America be more efficiently administered?


Independents Decide 02.18.16 at 9:22 pm

Pretty sick of both parties’ extreme partisanship. My initial reaction to the Republican’s message to Obama that he shouldn’t send a nominee and to let the next president make the nomination was admittedly very negative. In reading the OP and subsequent comments it seemed to me that the suggestions are essentially more about positioning for political messaging purposes than putting the right person (whatever that means) on the SC. Certainly not something new to either side.

All of this got me thinking, how is the Republican’s posturing on this any different than the President’s explicit message to Republicans concerning certain appropriations bills (say for instance the one that would have defunded PP) that they shouldn’t even pass the bill because if they do, he’ll veto it and then blame them for shutting down the government. It seems to me that, especially given the President’s SC nominee voting history and rhetoric while he was in the Senate, the Republican’s smarter move would have been to take a page from the President’s own book and say, don’t send us a nominee (implicitly, unless she/he is right of center) or we will not confirm (whether by voting down or not considering) and we will blame any issues related to having an extended open SC seat on you, Mr. President.

I think the President should look to example of the last two election year nominees (Eisenhower-Brandeis and Regan-Kennedy) and appoint either a very moderate Republican like Kennedy. That would win over the rational thinking independents more than the games suggested in the comments above. That gets the Democrats a slightly more liberal court (with two jurists to try to capture on any given case as a swing vote) and make it more likely to retain the Presidency and maybe even the Senate after which they can move the court even further left with subsequent replacement nominees for Ginsberg & Breyer.


Gerald 02.19.16 at 6:46 am

!st this NOT a case of 2 sides do it!

The POTUS is a 4 year term ..not 3/5’s of a term.

2nd The PEOPLE of the USA ELECTED THIS POTUS… TWICE and have spoken in fact he won the popular vote with 5 MILLION more than his GOP opponent.

3rd It is the POTUS Constitutional duty AND his right as POTUS to offer his selection.

4th The American people WANT and TRUST POTUS Obama’s political leanings in these matters (see 2)

5th Only willful ignorance allows one to ignore the actions of the MOST obstructionist political Party to a sitting President since the Civil War .
GOP/Republican Senators —abusive use of the filibuster. And stopped or delayed every judicial nominee submitted. AG Lynch comes to mind.
GOP/Republican led Congress’ 113 and 114 rated the 2 WORST in US history.

POTUS Obama should and will submit whom he believes to be well qualified and the GOP/Republicans SHOULD do their job … NOT obstruct the Constitution and the duly ELECTED POTUS.


TM 02.19.16 at 9:30 am

geo, your objection is not very original. Sure efficiency is in the eye of the beholder. But wouldn’t you agree that at some point during the 5th century, Rome’s government ceased to be efficient even from the point of view of the elites? It is an interesting question at what time the contemporaries would have realized the fact but I would argue that it is a fact.


Anarcissie 02.19.16 at 2:43 pm

TM 02.19.16 at 9:30 am @ 195 —
Gibbon says that the day before Rome fell (in 476, I guess) chariots made of gold trundled back and forth through the streets as on any other day.


ZM 02.20.16 at 12:59 am


I am not sure about at the fall of Rome who noticed it, but some centuries earlier Horace wrote to Emperor Augustus that Rime was like a ship in increasingly turbulent waters and should turn back to shore.


Ogden Wernstrom 02.20.16 at 3:00 pm

@189 – Glen Tomkins 02.18.16 at 7:01 am:

The Articles of Confederation had a provision that the Union the thirteen former colonies had signed onto, was to be perpetual and indissoluble. There was an explicit provision against secession. Not only did all thirteen break that promise when they jumped ship to ratify the Constitution, they did so unilaterally, without negotiating the fact or the terms of their secession with the confederal govt from which they were seceding.

All thirteen…unilaterally? How about “unanimously”?

When all parties to a contract decide not to enforce that contract any more, and a new contract has been written to take its place, who is left to press for enforcement of the old contract?

If southern states had devised a way to secede without violating Art. I, Section 10 of the US Constitution, it might have worked. Trump might be telling his supporters that he will make the Confederates pay for building the Mason-Dixon wall….


Glen Tomkins 02.21.16 at 5:10 am


The Confederation govt was a party to the Articles, yes? That was Bruce Wilder’s point about the federal govt, that I am responding to, that it had an existence apart from the will of state govts, and that they had agreed to subordinate themselves to the federal govt by signing on to a Constitution with a Supremacy Clause. This Confederation govt had a duty to all the citizens of that earlier version of the US, to preserve itself against all enemies as the tool of their will, yes? If you deny this point, you thereby agree with today’s secession and nullification enthusiasts on their favorite point, that the Constitution is strictly a compact among the states, that neither the people of the United States, nor the govt of the United States, is a party to that agreement.

The Articles went one better, they established the Confederation as something that the states agreed to subordinate themselves to in perpetuity, indissolubly, with no 10th Amendment escape clause, or 2d Amendment right of revolt, or Art IV, sec 4 right to define insurrection. To get the states to sign onto a more perfect Union, one with stronger federal institutions, the Founders who wanted this stronger central govt had to agree to put in these escape doors for the anti-Federalist, and to leave out any promise that states would never use these escape routes.

And not only did these seceding states fail to negotiate the dissolution of the Confederation with the Confederation, which in fact objected, so was just ignored, they agreed to go through with secession and a new Union even if four of their number did not agree. They were willing to just ignore the will of at least five parties to this indissoluble and perpetual contract that they had signed with each other. In the event, none of the 13 held back, but really, the 9 out of 13 provision was a strong coercion, yes? Did especially the small states have any real choice, if the large states had gone ahead with seceding from the Confederation? Did they not have invasion and subjugation by the Union to fear if they stayed out?


Glen Tomkins 02.21.16 at 5:42 am


Perhaps I should have clarified that this hypothetical of mine applies to situations like that in 1860-61, that unfolded over months, in which there is time to go to law before going to war, and the issue in which going to war — with a state of the Union — is chosen by the president over going to law, seems to be a legal issue to most people.

Today, I think almost everyone would agree that the question of South Carolina’s authority to nullify the Tariff of Abominations, or Virginia’s authority to secede, should be one that the courts would decide, rather than getting a Force Bill through Congress to invade SC, or calling for states loyal to the Union to send their militias to be federalized and sent South to invade the Confederacy. The courts would send injunctions South instead of armies, and events would unfold like nullification events in the 1960s, not like nullification in 1832 or 1861.

Kennedy and Eisenhower did send troops and marshals to deal with some of the nullification events in their presidencies, but they did this to enforce court orders, something Jackson and Lincoln never sought.


MilitantlyAardvark 02.21.16 at 6:22 am


It would be more accurate to say that the western Roman elite in the 5th century realized that they could do just as well for themselves by letting the central government wither away (and subsequently setting themselves up as bosses/favored barbarian collaborators in their local areas, especially Gaul). They did this primarily by declining to pay anything like their share of taxes on the enormous property portfolios they had accumulated across the empire. They were, if you like, the supply siders of the ancient world.


Glen Tomkins 02.21.16 at 8:22 am


Why would people in 1861, people generally and not just secessionist mooks, think it was at least a reasonable position, even if not one they agreed with, that the seceded states had the right to demand back the forts and other federal facilities located in their states? And if there was disagreement on this point, why would everyone just assume that of course the people who would decide this constitutional question would be commandants of these facilities, rather than the courts?

The theory that people proceeded by on these matters in those days was something that people today have no trouble seeing as an insane way to run a supposed Union. I certainly don’t have any sort of faith in the cogency or reasonableness of that theory, so I’m not a suitable advocate for presenting the theoretical arguments for it. But the historical practice is pretty inarguable, that this insane theory was once widely respected as the way things were done in relations among the states and the Union.

When the Federalists passed the Alien and Sedition Acts in 1798, Madison thought that they were clearly unconstitutional, a widely held opinion. It is difficult to imagine that we today would fail to identify the grounds on which this opinion was held, that provisions of the acts violated protections of free speech — and especially political speech — as central constitutional law issues. But instead of thinking that the right remedy was to go to law to vindicate these protections, Madison supported nullification of the Alien and Sedition Acts, and two states actually did nullify, Virginia and Kentucky.

I’m not aware that any violence occurred as a result of these nullifications. My understanding is these laws were mostly not enforced, perhaps not enforced anywhere in the US except by Justice Chase in his circuit (SCOTUS justices at that time spent most of the year riding a circuit), enforcement that earned him impeachment, but not conviction, after the Federalists lost the election that Chase tried to win by tossing opposition editors in jail. Just as Madison did not try to appeal to the courts (where his side might have lost, given the Federalist cast of the Court), neither did Adams seek vindication of the Acts’ legitimacy, and injunctions to state courts to proceed with enforcement, in the federal courts. Presumably Adams would have won in SCOTUS, had anyone gone there with this question.

The understanding at that time was that enforcing these laws, for which Adams had the same oath sworn in heaven as Lincoln, in states which had nullified them, would require sending in military forces. The US Army being laughably small at the time, and unable to move across the map in any case without a fresh appropriation, this would require going to Congress for the authorization to raise an army, the US Army plus the militias of states willing to participate, to invade Virginia and Kentucky. There was no stomach for this even in the New England states, so the Federalist bluff was called, they had tried some hardball, but had to slink away when challenged by states nullifying their scheme of suppressing the political opposition.

In contrast, when South Carolina nullified the Tariff of Abominations in 1832, Madison opposed that instance of nullification. I know of no evidence that he had changed his mind since 1798 about nullification in general, and the reason he offered for his opposition to South Carolina’s nullification that I have seen in direct quotation is that he thought it tolerably clear that Art I, sec 8 gives Congress the sole power to set tariffs. But again, neither Madison, nor the president at the time, Andrew Jackson, nor the South Carolina govt, sought vindication for their view of the matter in the courts.

Unlike Adams in 1798, Jackson in 1832 sought and obtained a Force Bill that voted the money to raise an army to invade South Carolina to collect the tariffs voted by the US Congress. There was no question of sending injunctions that SC cease and desist from using its militia to keep by force the Collector of Revenues of the Port of Charleston from going about his duties. SC didn’t complain that it was unfair for the rest of the US to raise an army, and it didn’t seek injunctions to stop the raising of such an army. It instead came to the negotiating table, and a compromise tariff was accepted by both sides before the invasion was necessary.

Yes, this is a crazy way to run a country, so crazy and so at variance with our current practice that the idea that our highly respected, even idolized, Constitution embodies this madness, is difficult to swallow. But that’s our history, I’m not making this up.

In that context, Buchanan’s reported remark, that he wasn’t sure whether or not secession was constitutional, but was sure that there was nothing he could do about it, makes a certain sense. I can’t understand this remark as referring to any particular provision except Art IV, sec 4, which is the same provision cited by states to justify the second wave of secession. Usurping the states’ legitimate authority to declare who was in insurrection was the overt act of lawlessness that “moderate” Southerners thought should be waited on to justify secession. These states argued that this provision gives to the states alone the authority to decide which group of armed men within their state boundaries are in insurrection, as opposed to carrying out the will of the state. Since Buchanan could not get a Force Bill through the lame duck Congress to raise the army necessary to vindicate his Supremacy Clause duty to enforce the laws throughout the Union, even if he thought that secession merited the war that would have started, he was left without recourse. It was not clear to him that it was appropriate to give orders to US Army commanders of outposts in seceded states that they should refuse to surrender US property to armed groups sanctioned by those states as their militias. If the policy of the US was not to be war on the seceded states, a war he could not get declared with the Congress he had, then it only made sense to respect the view of the matter of the seceded states, that a state had the Art IV, sec 4 authority to only allow US forces, including military facilities, within its borders at the state’s discretion.

Of course Buchanan’s reluctance to at least ask for a Force Bill might be attributed to a pro-Southern bias. But I’m not aware that he asked for a Force Bill to invade Northern states for nullifications of the Fugitive Slave Act either. He was unwilling to go to war to enforce his oath sworn in Heaven to uphold federal law as defied by states on both sides of the Mason Dixon line. I’m not aware that he asked for injunctions either on any of these defiant states.

These questions were not appealed to the courts for their decision, because the thinking at the time was not that all Constitutional questions were necessarily legal questions. Concretely, this question that commanders of US forts in seceded states faced in 1860-61, was not thought to have one answer. The idea that the law has to be able to arrive at only one answer, that it cannot demand contradictory actions, is fundamental, and is the basis for judicial review, which does not derive from any authority granted by the Constitution, but from the need for courts to decide which law to enforce when there would be contradictory requirements unless one such law was not enforced. If a US Army commander accepted the claim of the seceded state to have asserted its Art IV authority and rescinded its permission for his forces to continue in that state, then, in the absence of a declaration of war on the seceded state by his govt, he would be compelled to respect that claim and surrender the fort. But if that same commander were to follow the theory that having seceded, the state and the US were now, in the absence of formal relations, in a state of war even without formal declaration, then he would be duty bound to resist surrender to the forces of a hostile power.

SCOTUS didn’t do those questions in those days, and so no one thought to ask it to decide these questions, or more generally, what status the seceded states actually had, foreign power, insurrectionists conspiracy, or whatever. People just got by without legal guidance, and so we had Major Anderson sitting in Ft Sumter as a sort of Heisenberg particle vs wave, empowered to come up with his own answer where the law was not thought capable of dictating a unitary result, and no one sure whether a Kentuckian would say yes or no to the authority of SC to take back the fort entrusted to his command by the US.

Crazy as this theory of govt was, it did not have this mook feature imagined by many of our current nullification and secession enthusiasts, that nullification is some sort of right analogous to the rights of individuals we ask the courts to protect. A state had the practical authority to nullify federal law because it had the Art IV authority to define what within its borders was insurrection and what wasn’t. It could order its military forces to block federal authorities in their duties, and the federal govt could do nothing about that short of sending in an army, because the designation of these blocking forces as insurrectionists could only be made by the state, and federal forces could only enter the state to suppress insurrection at the invitation of state govt. But this state authority did not cancel the duty of the US govt to assert the Supremacy Clause to see that US law was enforced throughout the country. As Lincoln put it, the folks dissatisfied with a Union that had just elected him president might have had reservations that led them to the extreme response of secession, but whatever the status of their justifications for secession, these fell far short in clarity and force to the oath registered in Heaven to enforce the Supremacy Clause that Lincoln had just taken.

To take a recent example of history repeating every tragedy as farce, the Bundy folks would have had a very clear right of revolt guaranteed by the 2d Amendment, had the govt of Oregon deputized them as a militia. Failing that, no dice, just criminals. But even if they believed, and the rest of us accepted, some witch’s brew combination of 2d Amendment right of revolt plus Sovereign Citizen usurpation of state authority, or if Oregon ha declared that they were its militia, they still had no right to expect that the full weight of the US govt would not come down on them. The president still has that oath sworn in Heaven to suppress violent revolution.

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