Home » Advice & Consent 16: One Last Time for the debates and increased obstructionism in 2017?

Advice & Consent 16: One Last Time for the debates and increased obstructionism in 2017?

In this episode we chat about our the SCOTUS action in the third presidential debates and explore the new forms of obstructionism on the horizon.

Direct download: Advice & Consent 16: “One Last Time” for the debates and increased obstructionism in 2017? (mp3)

Merrick Garland at 219 days

  • Today as we record the show (10/20) marks day 219 since Judge Garland’s nomination to fill Justice Scalia’s seat. We are just a few days short of 7 months since his nomination on March 16, 2016.
  • We’ll keep the lights on as a Supreme Court nomination podcast through however this gets resolved. Stay tuned til the end of the show for a programming note…
  • Senator John McCain (R-Ariz.) said this week that Senate Republicans will move to block any Supreme Court nominee made by a Democratic President.
  • On the other hand, Senators Orrin Hatch (R-Utah) and Mike Lee (R-Utah) and Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) try to appear reasonable. TRY…
  • Also, some cracking… Senator Jeff Flake (R-Ariz.) said “If Hillary Clinton is president-elect then we should move forward with hearings in the lame duck. That’s what I’m encouraging my colleagues to do.”

The Third Debate has… a SCOTUS question!

What do you think of the SCOTUS question and the answers by the candidates? And did we call anything correctly on the last episode?


  1. I think my love of process was projected onto my expectations, which I hopefully hedged a bit. But the lack of substantive discussion about the fact that there’s ACTUALLY A VACANCY ON THE COURT is astounding. Anyone just dropping in to American politics at this point would have no idea from last night’s debate that we’re dealing with an actual real-live vacancy, let alone one that’s been lingering for more than 8 months. That’s ASTONISHING to me.
  2. My prediction that 1 nominee will answer and another won’t seems right still, though actually I think because it was the first question and neither candidate was revved up just yet, there was more substance to the initial answer than I expected from Trump. He crossed off the list of things he needed to say: list, prolife, Scalia. Not sure why he had to throw RBG under the bus, but probably b/c that was the only want to make it about him.
  3. I think I misread what Wallace would do in terms of framing. His question (below) would have satisfied me if he stopped after saying “where do you want to see the court take the country? And secondly, what’s your view on how the Constitution should be interpreted?” FULL STOP. I still would’ve had beef with perpetuating the notion that the Court leads the country in where we go, but think it’s open ended enough. And then I wish he would’ve asked what’s to be done about this ACTUAL vacancy we have. How would the candidate work with the Senate whose role is to provide advice and consent when that process has imploded? Instead he goes on to create a false dichotomy in constitutional interpretation: “Do the founders’ words mean what they say or is it a living document to be applied flexibly according to changing circumstances?” On it’s face, the  two aspects aren’t mutually exclusive, but this whole originalism vs. living document thing isn’t a great framework. It’s dated and really to me showed a lack of understanding about the Court and how to best get the candidates talking about SCOTUS.  
  4. Pleased Clinton mentioned the current vacancy – and alluded to Advice and Consent and Senate obstruction. But I think she could’ve done more to spell out how absurd it is, meanwhile helping the downticket Senate candidates.
  5. A little disappointed the Court conversation turned to guns and abortion. I think those 2 topics warranted time, for sure, but wish it wasn’t only in this bucket of the Court since there’s SO MUCH at stake and so much else that could have been discussed. It ended up sounding more policy-based than court-based. Though it really delineated the candidates in terms of who understood the courts and how didn’t. Pretty sure Trump doesn’t understand how courts work. Or that maybe those judges on his list who he claims will do what he wants them to do wouldn’t appreciate that assumption.


Secretary Clinton, Mr. Trump, welcome. Let’s get right to it. The first topic is the Supreme Court.

You both talked briefly about the court in the last debate, but I want to drill down on this, because the next president will almost certainly have at least one appointment and likely or possibly two or three appointments.

WALLACE: Which means that you will, in effect, determine the balance of the court for what could be the next quarter century.

First of all, where do you want to see the court take the country? And secondly, what’s your view on how the Constitution should be interpreted? Do the founders’ words mean what they say or is it a living document to be applied flexibly according to changing circumstances? In this segment, Secretary Clinton, you go first. You have two minutes.

CLINTON: Thank you very much, Chris. And thanks to UNLV for hosting us.

You know, I think when we talk about the Supreme Court, it really raises the central issue in this election, namely, what kind of country are we going to be? What kind of opportunities will we provide for our citizens? What kind of rights will Americans have?

And I feel strongly that the Supreme Court needs to stand on the side of the American people, not on the side of the powerful corporations and the wealthy. For me, that means that we need a Supreme Court that will stand up on behalf of women’s rights, on behalf of the rights of the LGBT community, that will stand up and say no to Citizens United, a decision that has undermined the election system in our country because of the way it permits dark, unaccountable money to come into our electoral system.

I have major disagreements with my opponent about these issues and others that will be before the Supreme Court. But I feel that at this point in our country’s history, it is important that we not reverse marriage equality, that we not reverse Roe v. Wade, that we stand up against Citizens United, we stand up for the rights of people in the workplace, that we stand up and basically say: The Supreme Court should represent all of us.

That’s how I see the court, and the kind of people that I would be looking to nominate to the court would be in the great tradition of standing up to the powerful, standing up on behalf of our rights as Americans.

And I look forward to having that opportunity. I would hope that the Senate would do its job and confirm the nominee that President Obama has sent to them. That’s the way the Constitution fundamentally should operate. The president nominates, and then the Senate advises and consents, or not, but they go forward with the process.

WALLACE: Secretary Clinton, thank you.

WALLACE: Mr. Trump, same question. Where do you want to see the court take the country? And how do you believe the Constitution should be interpreted?

TRUMP: Well, first of all, it’s great to be with you, and thank you, everybody. The Supreme Court: It’s what it’s all about. Our country is so, so — it’s just so imperative that we have the right justices.

Something happened recently where Justice Ginsburg made some very, very inappropriate statements toward me and toward a tremendous number of people, many, many millions of people that I represent. And she was forced to apologize. And apologize she did. But these were statements that should never, ever have been made.

We need a Supreme Court that in my opinion is going to uphold the Second Amendment, and all amendments, but the Second Amendment, which is under absolute siege. I believe if my opponent should win this race, which I truly don’t think will happen, we will have a Second Amendment which will be a very, very small replica of what it is right now. But I feel that it’s absolutely important that we uphold, because of the fact that it is under such trauma.

I feel that the justices that I am going to appoint — and I’ve named 20 of them — the justices that I’m going to appoint will be pro-life. They will have a conservative bent. They will be protecting the Second Amendment. They are great scholars in all cases, and they’re people of tremendous respect. They will interpret the Constitution the way the founders wanted it interpreted. And I believe that’s very, very important.

I don’t think we should have justices appointed that decide what they want to hear. It’s all about the Constitution of — of — and so important, the Constitution the way it was meant to be. And those are the people that I will appoint.

WALLACE: Mr. Trump, thank you.

WALLACE: We now have about 10 minutes for an open discussion. I want to focus on two issues that, in fact, by the justices that you name could end up changing the existing law of the land. First is one that you mentioned, Mr. Trump, and that is guns.

Secretary Clinton, you said last year, let me quote, “The Supreme Court is wrong on the Second Amendment.” And now, in fact, in the 2008 Heller case, the court ruled that there is a constitutional right to bear arms, but a right that is reasonably limited. Those were the words of the Judge Antonin Scalia who wrote the decision. What’s wrong with that?

CLINTON: Well, first of all, I support the Second Amendment. I lived in Arkansas for 18 wonderful years. I represented upstate New York. I understand and respect the tradition of gun ownership. It goes back to the founding of our country.

But I also believe that there can be and must be reasonable regulation. Because I support the Second Amendment doesn’t mean that I want people who shouldn’t have guns to be able to threaten you, kill you or members of your family.

And so when I think about what we need to do, we have 33,000 people a year who die from guns. I think we need comprehensive background checks, need to close the online loophole, close the gun show loophole. There’s other matters that I think are sensible that are the kind of reforms that would make a difference that are not in any way conflicting with the Second Amendment.

You mentioned the Heller decision. And what I was saying that you referenced, Chris, was that I disagreed with the way the court applied the Second Amendment in that case, because what the District of Columbia was trying to do was to protect toddlers from guns and so they wanted people with guns to safely store them. And the court didn’t accept that reasonable regulation, but they’ve accepted many others. So I see no conflict between saving people’s lives and defending the Second Amendment.

WALLACE: Let me bring Mr. Trump in here. The bipartisan Open Debate Coalition got millions of votes on questions to ask here, and this was, in fact, one of the top questions that they got. How will you ensure the Second Amendment is protected? You just heard Secretary Clinton’s answer. Does she persuade you that, while you may disagree on regulation, that, in fact, she supports a Second Amendment right to bear arms? TRUMP: Well, the D.C. vs. Heller decision was very strongly — and she was extremely angry about it. I watched. I mean, she was very, very angry when upheld. And Justice Scalia was so involved. And it was a well-crafted decision. But Hillary was extremely upset, extremely angry. And people that believe in the Second Amendment and believe in it very strongly were very upset with what she had to say.

WALLACE: Well, let me bring in Secretary Clinton. Were you extremely upset?

CLINTON: Well, I was upset because, unfortunately, dozens of toddlers injure themselves, even kill people with guns, because, unfortunately, not everyone who has loaded guns in their homes takes appropriate precautions.

But there’s no doubt that I respect the Second Amendment, that I also believe there’s an individual right to bear arms. That is not in conflict with sensible, commonsense regulation.

And, you know, look, I understand that Donald’s been strongly supported by the NRA. The gun lobby’s on his side. They’re running millions of dollars of ads against me. And I regret that, because what I would like to see is for people to come together and say: Of course we’re going to protect and defend the Second Amendment. But we’re going to do it in a way that tries to save some of these 33,000 lives that we lose every year.

WALLACE: Let me bring Mr. Trump back into this, because, in fact, you oppose any limits on assault weapons, any limits on high- capacity magazines. You support a national right to carry law. Why, sir?

TRUMP: Well, let me just tell you before we go any further. In Chicago, which has the toughest gun laws in the United States, probably you could say by far, they have more gun violence than any other city. So we have the toughest laws, and you have tremendous gun violence.

I am a very strong supporter of the Second Amendment. And I am — I don’t know if Hillary was saying it in a sarcastic manner, but I’m very proud to have the endorsement of the NRA. And it’s the earliest endorsement they’ve ever given to anybody who ran for president. So I’m very honored by all of that.

We are going to appoint justices — this is the best way to help the Second Amendment. We are going to appoint justices that will feel very strongly about the Second Amendment, that will not do damage to the Second Amendment.

WALLACE: Well, let’s pick up on another issue which divides you and the justices that whoever ends up winning this election appoints could have a dramatic effect there, and that’s the issue of abortion.

TRUMP: Right.

WALLACE: Mr. Trump, you’re pro-life. But I want to ask you specifically: Do you want the court, including the justices that you will name, to overturn Roe v. Wade, which includes — in fact, states — a woman’s right to abortion?

TRUMP: Well, if that would happen, because I am pro-life, and I will be appointing pro-life judges, I would think that that will go back to the individual states.

WALLACE: But I’m asking you specifically. Would you like to…

TRUMP: If they overturned it, it will go back to the states.

WALLACE: But what I’m asking you, sir, is, do you want to see the court overturn — you just said you want to see the court protect the Second Amendment. Do you want to see the court overturn Roe v. Wade?

TRUMP: Well, if we put another two or perhaps three justice on, that’s really what’s going to be — that will happen. And that’ll happen automatically, in my opinion, because I am putting pro-life justices on the court. I will say this: It will go back to the states, and the states will then make a determination.

WALLACE: Secretary Clinton?

CLINTON: Well, I strongly support Roe v. Wade, which guarantees a constitutional right to a woman to make the most intimate, most difficult, in many cases, decisions about her health care that one can imagine. And in this case, it’s not only about Roe v. Wade. It is about what’s happening right now in America.

So many states are putting very stringent regulations on women that block them from exercising that choice to the extent that they are defunding Planned Parenthood, which, of course, provides all kinds of cancer screenings and other benefits for women in our country.

Donald has said he’s in favor of defunding Planned Parenthood. He even supported shutting the government down to defund Planned Parenthood. I will defend Planned Parenthood. I will defend Roe v. Wade, and I will defend women’s rights to make their own health care decisions.

WALLACE: Secretary Clinton… CLINTON: And we have come too far to have that turned back now. And, indeed, he said women should be punished, that there should be some form of punishment for women who obtain abortions. And I could just not be more opposed to that kind of thinking.

WALLACE: I’m going to give you a chance to respond, but I want to ask you, Secretary Clinton, I want to explore how far you believe the right to abortion goes. You have been quoted as saying that the fetus has no constitutional rights. You also voted against a ban on late-term, partial-birth abortions. Why?

CLINTON: Because Roe v. Wade very clearly sets out that there can be regulations on abortion so long as the life and the health of the mother are taken into account. And when I voted as a senator, I did not think that that was the case.

The kinds of cases that fall at the end of pregnancy are often the most heartbreaking, painful decisions for families to make. I have met with women who toward the end of their pregnancy get the worst news one could get, that their health is in jeopardy if they continue to carry to term or that something terrible has happened or just been discovered about the pregnancy. I do not think the United States government should be stepping in and making those most personal of decisions. So you can regulate if you are doing so with the life and the health of the mother taken into account.

WALLACE: Mr. Trump, your reaction? And particularly on this issue of late-term, partial-birth abortions.

TRUMP: Well, I think it’s terrible. If you go with what Hillary is saying, in the ninth month, you can take the baby and rip the baby out of the womb of the mother just prior to the birth of the baby.

Now, you can say that that’s OK and Hillary can say that that’s OK. But it’s not OK with me, because based on what she’s saying, and based on where she’s going, and where she’s been, you can take the baby and rip the baby out of the womb in the ninth month on the final day. And that’s not acceptable.

CLINTON: Well, that is not what happens in these cases. And using that kind of scare rhetoric is just terribly unfortunate. You should meet with some of the women that I have met with, women I have known over the course of my life. This is one of the worst possible choices that any woman and her family has to make. And I do not believe the government should be making it.

You know, I’ve had the great honor of traveling across the world on behalf of our country. I’ve been to countries where governments either forced women to have abortions, like they used to do in China, or forced women to bear children, like they used to do in Romania. And I can tell you: The government has no business in the decisions that women make with their families in accordance with their faith, with medical advice. And I will stand up for that right.

WALLACE: All right. But just briefly, I want to move on to another segment…

TRUMP: And, honestly, nobody has business doing what I just said, doing that, as late as one or two or three or four days prior to birth. Nobody has that.


1) I wrongly predicted that Wallace would play it straight.  Asking about judges who interpret the Constitution “so the Framers words mean what they say” as a way to describe the Republican ideal judge is a description straight from RNC focus groups on what language works best.  Republicans used to say “strict constructionist” to describe what they wanted (here’s the Poppy Bush WH using the term https://books.google.com/books?id=SQxqXLSy9wcC&pg=PA99&lpg=PA99&dq=strom+thurmond+strict+construction&source=bl&ots=te4wQLK4Y8&sig=GVvXbuM0AVgzjUAcso3tqzivm94&hl=en&sa=X&ved=0ahUKEwiy-aenuOnPAhUE6CYKHVr6Dik4ChDoAQgsMAM#v=onepage&q=strom%20thurmond%20strict%20construction&f=false), but that didn’t poll well, so they decided to wrap up their preferred type of judge in terms of what the Framers wanted just like Wallace did.  Because of the conservatives’ hitting on the message of interpreting the Constitution according to the original intent of the Constitution, many leading liberal legal intellectuals, such as Jack Balkin, the Amar brothers, Elena Kagan, and the late Doug Kendall have invested a lot of time in trying to prove that the original intent of the Framers leads to liberal results.  And their research has shown that the idea that it’s not at all clear that there’s a huge difference between the way the Framers meant the Constitution to be interpreted and the current way liberal legal scholars and judges interpret the Constitution.

2) Tim was right that Wallace didn’t have deep enough knowledge to ask real follow-ups.  Granted, it was pretty clear that if Wallace had pushed Trump on legal issues, he would have likely just passed.  So I want to highlight a more interesting chance to follow-up.  If Wallace had said, “You frame your opposition to Heller in terms of toddlers shooting people.  But Secretary Clinton, the District of Columbia gun law that was overthrown in Heller was in reality a complete ban on owning a handgun.  Even if an intruder came into the house, it was illegal for a person in the house to put the gun together to defend herself.  If you don’t think the Second Amendment makes such laws unconstitutional, what laws would be unconstitutional under the Second Amendment?”  Sure glad Wallace wasn’t prepared enough to ask something like that.

3) I was right that Hillary would get off the subject quickly.  Sad trombone for lack of mention of Merrick Garland or the unprecedented refusal to even hold a hearing on his nomination.  Sad trombone for less than a full sentence for Citizens United.  Sad trombone for not using the opportunity to mention the Supreme Court thwarting climate change.  Sad trombone for three debates and no mention of the corporate court.

4) Forbes contributor Michael Bobelian made the interesting point that, in the post-WWII era, Nixon was the first to campaign explicitly on a promise to reshape the Supreme Court. http://www.forbes.com/sites/michaelbobelian/2016/10/20/clinton-trump-feud-over-supreme-court-fueling-a-campaign-battle-ignited-by-nixon-in-68/2/#9b486841a153.  It was part of Nixon’s (failed for 1968) Southern Strategy.  Before that, we had had 30 years of peace on the issue of the Supreme Court at the presidential level.  So, we’re all living in Nixonland. Take a bow, Rick Perlstein. https://www.amazon.com/Nixonland-Rise-President-Fracturing-America/dp/074324303X


The Donald cares very little about the Court, but knows it matters to the small group of remaining people that would consider voting for him. So he memorizes for a SCOTUS question like I memorized for the Commercial Paper section of the Oregon State Bar exam (I managed to skip enrolling in that snoozer of a class in law school)… mention a bunch of hotwords to get the graders’ attention and hope the “fake it til you make it” technique works. For Trump — as Lena noted — the words were Scalia, Constitution, “Partial Birth Abortion” and Second Amendment. I would be shocked if he knew anything beyond that, unlike my vast and complex understanding of Oregon commercial paper law.

The opening question was a softball like I thought it would be. I’m in agreement with Adam… I think we can quibble with the framing for sure (“do the founders words mean what they say” vs. “flexible” wasn’t exactly right down the middle there Chris).

HRC’s answer was thoughtful and thorough. The Donald’s answer was thin and (probably) rotely memorized from a memo written by someone who actually cares about and understands SCOTUS and American jurisprudence. It’s more obvious than ever that The Donald doesn’t understand or frankly care that much about the topic except he knows it matters to people he has to please.

Pivoting to abortion and guns made this feel a little underwhelming but at least (a) actual case law other than Roe was mentioned (who had Heller in the pool??) and (b) this is sadly about as good as it gets in a general election debate.

Last but not least, The Donald’s failure to clearly and unequivocally declare support for the election outcome is terrifying. Shades of “John Marshall has made his decision, now let him enforce it.” So much of what our system is built on relies on these bedrock concepts of respect for institutions and structure even and especially when you lose. It’s a logical extension of the mindset where you make shit up to not consider a duly nominated Justice as we’ll be learning more about in THE OTHER DEBATE from last night (segue!)


The OTHER Debate on Wednesday…. Chair of the Senate Judiciary Committee, Chuck Grassley, and Patty Judge discuss SCOTUS

Moderator: The first question focuses on the nomination of Judge Merrick Garland to the Supreme Court. Senator Grassley since Judge Garland’s nomination you have opposed convening confirmation hearings. Just last month though you said you would consider hearings during a lame duck session after election day. Why sir soften your stance?

Grassley: I will not change my position from my February 23rd letter that the people ought to have a voice and the new President whether it’s Trump or Ms. Clinton will make the next appointment as far as I’m concerned. The reason we did not have a hearing and 52 other Senators agreeing with that, we have taken the position similar to what Democratic senators have taken when there’s been Republican Presidents, three different ones, and the point that they made in the last year of a Presidential term if a vacancy happens then people have a choice and let the new President make it. So you can’t have one rule for Democratic Presidents and another rule for Republican Presidents so we’re being very consistent.

Moderator: To be specific the 52 Senators that you mentioned if they change their minds and favored confirmation hearings during a lame duck session not to say that you support it, but would you consider it?

Grassley: If a majority of the Senate said that they were going to move ahead, a chairman serves at the majority of the Senate of the United States, and I would follow the majority of the Senate. I don’t expect that to happen though.

Moderator: As consistently as Senator Grassley has opposed the confirmation hearings, you advocated for them, I want to take you back to June of 1992 as a U.S Senator Vice President Joe Biden talked hypothetically about postponing those hearings on a Supreme Court vacancy, should be there one, until after the election of that day in November of 1992. Given your advocacy for hearings about Judge Garland’s nomination do you then believe the Vice President of the United States, as one the leaders of your party, was wrong 26 years ago?

Judge: Well I believe we now have the longest time in the history of this country between a nomination and a hearing and that is unprecedented. I believe that it is hampering the court, we have a court that is not able to function as it was designed by the Constitution. We have disrupted the balance of power, whatever Joe Biden said in the halls on Congress at some time, if that is in fact is his view, that is not my view. I believe that the duty of the Judiciary Committee is to have a hearing and my opponent is refusing to do that. It should be done and I am really tonight troubled that his answer about a lame duck session. It concerns me that he is leaving himself some wiggle room so that they can have a hearing for Judge Garland between the time this election over and Hillary Clinton takes office.

Grassley: In 1968 there was a vacancy, the Democratic Senate decided not to fill the vacancy. they presumably though that Humphrey was going to be elected, Humphrey wasn’t elected, Nixon was elected, Nixon appointed two new people to the Supreme Court. So consequently even in 2007 Schumer said 18 months ahead of time if there’s a vacancy it should be filled by the new one. Then in 2005, Reid gave a speech in which he said there’s nothing in the Constitution that says the Senate has to move ahead. That’s the checks and balances of our government.

Moderator: Ms Judge he seems to cite precedent, three that I can hear, what’s your response?

Judge: My response is that this is wrong. This is obstruction of the process, we have a Supreme Court that is unable to function, this is exactly what’s wrong with Washington. This is why people are angry. Because instead of getting to work, doing what should be done, they are playing political games in Washington DC and it has to stop.

Grassley: There’s nothing wrong with the checks and balances in our Constitution. The President nominates, the Senate confirms. Or advises and consents. Or not to consent as they choose to do based upon what Senator Reid, the Democratic leader said in 2005.

Judge: You know we can talk about what somebody said but the truth of the matter is we have not had a functioning court in months, we will not have a functioning court for many more months. That is wrong. That is political games whether it’s being played by the Republicans or Democrats it is wrong and it needs to stop.

Tim: This rule-changing on the fly is straight-up Orwellian. I wish the Republicans would just be sincere with everyone and say what they’re trying to do… pack the Court. For a party obsessed with promoting original intent and fidelity to The Framers, this is hypocrisy of the highest order.

Adam: The lie about 1968 shows just how unmoored the argument against holding a hearing is.  First of all, what Grassley is talking about is a filibuster of the Fortas nomination.  The only way Fortas could be filibustered is if the Judiciary Committee Chairman agreed to hold a hearing and a committee vote, which is what happened with Fortas.  Secondly, why would Democrats deep-six a Democratic nominee on the hope that another Democrat would win the White House.  That would be just about the dumbest political strategy in history.  And of course that’s not what happened.  A majority of Senate Democrats voted to end the filibuster against Fortas and a majority of Republicans voted to continue it.  And of course, all the Democrats to vote against the Fortas nomination came from Dixiecrats except for border state Senator Robert Byrd https://library.cqpress.com/cqalmanac/document.php?id=cqal68-1284316.

America’s favorite game show RETURNS – Election Speculation: CELEBRITY EDITION

Scenario from guest celeb, Sen. John McCain!

HRC wins, Senate goes to the GOP.

I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up. I promise you. (CNN)


Justices of Election Speculation:Celebrity Edition…. On a scale of 1-10 how do you score the good Senator’s scenario? Will the GOP actually put up a united front against President Clinton’s nominee?

Adam: The combination of the treatment of the Garland nomination and the Trump nomination makes me think that I have no idea what the outer boundaries of acceptable political actions are any more.  That said, 10 if GOP retains the Senate. 1 if they do not.  They do not confirm anyone unless the West Wing scenario comes true and they can place a conservative in Scalia’s seat in return for a liberal in another seat.

A friend (Dave Saldana) said to me that a law prof he admires, Nomi Stolzenberg, describes the Senate filibuster as political Lochnerism–a countermajoritarian method to keep the elected branches from fulfilling their duty to represent the people.  This brings up interesting issues that probably go beyond the scope of this podcast.  But briefly, Lochner is a case in which the U.S. Supreme Court struck down a New York State maximum hour law based on an implied right in the Constitution of freedom of contract.  But the term Lochnerism encompasses a number of different strategies the Court used to strike down turn-of-the-century laws to reform the gilded age economy, including the Commerce Clause, the Takings Clause, the Nondelegation Doctrine, the Contracts Clause, and others.  It is true that the Founders set up both the Supreme Court and the Senate to be checks on the impulses of the majority.  But there must be a line at which the majority will is so thwarted that the government overall loses its ability to say that it has the consent of the governed (gerrymandering is yet another issue that could fit into this discussion).  So, to keep within the bounds of the podcast, the Supreme Court faced this question in the 30s and triggered a real constitutional crisis but found a way to step back from the precipice.  If the Senate remains in Republican hands, it looks like Republicans are getting closer and closer to triggering another constitutional crisis.


McCain pulled the curtain back. Revealed the grand plan all along and it’s a nightmare. Now, I’m delighted in some ways that this has been exposed for exactly what it is. I’m more surprised it was McCain who made the misstep of actually saying it outloud. I’ve tried to play this out a bit so bear with me. In pulling back the curtain, we see McConnell as the Wizard, but probably the Scarecrow is maybe Grassley for following along without questions, then Toomey for lacking courage, and McCain for the lack of heart.

That said, i think the Rs think this is their only tactic and even if they maintain a majority in the Senate will need to appear like they’re friendly/getting stuff done. I’m pretty sure I’m then calling this a 5 because part of me is optimistic that things can’t get worse. The other part of me is realistic enough to know that it’s quite possible we haven’t yet hit the bottom. But this constitutional crisis – where 1) rule of law isn’t respected, 2) institutions like Senate procedure, tradition isn’t respected, 3) 1 branch shuts down another branch, and 4) judiciary just isn’t being staffed (from SCOTUS on down) is really really scary. We need to really inform people that this isn’t politics as usual. This isn’t some sort of eye-for-an-eye maneuver. This is a takedown of the functioning of our gov’t which ultimately will further hurt the Court’s and gov’t’s credibility.



Tim: 9/10 – I think the Senator is right… the Republicans will continue to behave as if “the Scalia seat” is theirs by divine right and they will continue to create new reasons out of whole cloth to stand in the way of confirming a duly elected President’s nominee for a replacement. The only question I have is whether they’ll change strategy. I don’t think they can stonewall the next President’s nominees without a hearing (right???) so then they have to pay the political price of just rejecting every nominee on “substance” each time. I expect a lot of foot dragging and delay under this scenario. No Justice seated in the next Congress… at all… if there’s a GOP Senate.