It’s transition season now that the election is over and a few questions remain for the Garland nomination… notably, has the Senate waived its advice and consent role? And how will the new roster of the Senate Judiciary Committee impact this vacancy and other business before it in the next Congress? Lots to unpack before we head over the hills and through the woods for a holiday break!
Has the Senate waived its advice & consent “rights” allowing Merrick Garland to take a seat SCOTUS?
No direct precedent
Probable Constitutional crisisTM after Jan 20th
President Obama unlikely to be into this option
Even if he wasn’t, probably too late (should have happened this summer)
Adam: The question Democrats/liberal activists have to confront is: As the party/ideology that believes that government can help society, how much do they try to explode the institutions of government with the goal, ironically, of protecting those institutions from Trump (we had to bomb the village to save it) vs. how much do they normalize Trump by trying to protect the institutions of government by not blowing them up.
For example, the Senate rules allow Democrats to basically force the Senate to do nothing. The Dems could filibuster the organizing resolution laying out the new committee chairs and members for the new Congress; unlike almost any other motion, they can move to adjourn the Senate no matter what the pending business is (and, if they time the motion right, win it, or at least force Rs to be in DC whenever the Senate is in session–normally, many senators are out of town between Thursday midday and Tuesday midday even if the Senate is in session); they can force every bill to be read; they can force every vote to occur twice using the motion to reconsider; they can file cloture motions on any bill pending on the floor that take precedence over much other Senate business; they can use these dilatory tactics to shut down the government.
To tie this back into the subject of the podcast, they can refuse to consent to floor votes on any nomination, from who becomes a commander in the Coast Guard to who becomes a Supreme Court justice. This would require the Senate to change the rules on Supreme Court justices to allow them to overcome a filibuster with a simple majority vote, and for the other nominees–where cloture already takes a simple majority–it would require all nominees to have to be debated for 30 hours before being confirmed (if Dems don’t give their consent to time running during a recess).
These are serious steps. None would have the result of stopping a determined Republican majority. It would only have the effect of slowing down Republicans, infuriating them, and making it clear that Democrats do not see Trump as a politician that they can play ball with.
It would also go a long way to destroying the Senate as an institution. Do Democrats want to do that? Do they want to provoke constitutional crisis? Or are they willing to risk normalizing Trump by not fighting tooth and nail? I would guess the answer to that last question is “yes,” although that will go a long way to reelecting Trump in 2020 (unless a recession intervenes).
If Democrats let this go without some kind of response, it’s s like thanking the schoolyard bully after the daily lunch money shakedown. But this is a burn the house down strategy that would (a) not work, and (b) cause damage to institutions the Dems care about. So, ¯_(ツ)_/¯
Lena: While I think it’s fascinating, this isn’t the kind of move that’s going to be 1) successful or 2) helpful in protecting the institutions we care about. Respect the institutions, and checks on it. There are certainly those who have tried every way possible to get the Senate to do something, and I’d like to think that the words the President shall appoint has meaning. But the clause before “appoint” about “advice and consent” is something that has to happen – I do think it’s an affirmative duty.
Dan: Just like Merrick Garland’s parking space at the Supreme Court, I got nothing.
Changes on the Judiciary Committee
Spoiler alert: Sen. Sessions may not be there.
Sen. Schumer definitely won’t be there.
New ranking member… Dianne Feinstein?
Lena: First woman to serve on the Senate Judiciary Committee. First woman to serve as chair or ranking member of the panel, which is a tremendous role given the Supreme Court and other nominations that will go through the Committee.
Interesting because she’s up for reelection in 2018.
Strong membership under the Ranking Member, as well.
Dan: Important on govt surveillance issues.
New names for The List and conservatives victory lap
Dan: I just need to publicly cry over this for a moment: “Religious freedoms, Alito said, are “in even greater danger.” Quoting “the latest recipient of the Nobel Prize for literature,” Bob Dylan, Alito said, “It’s not dark yet, but its getting there.”
Lena: WSJ article pushing President-Elect Trump to vet and nominate a new Suprem Court justice given pending cases on Obama Administration regulations: http://www.wsj.com/articles/trumps-supreme-court-priority-1479682227
Tim: Holiday episode proposal: SCOTUS List Mock Draft!
New segment: Outrage Fatigue – things to keep an eye on
Jefferson Beauregard Sessions, III
Lithwick on Sessions (Slate)
Reminding listeners why he was rejected as a federal judge
Why this should also be relevant for concern as Attorney General (hi Civil Rights division!)
Sen. Dianne Feinstein (D-CA), the leading Democrat on the Senate Judiciary Committee, allowed in a statement that she and Sessions “differ on a great many issues,” she emphasized that hearings would be a “thorough vetting” of Sessions’s views — hardly a promise to oppose his confirmation. (Vox)
Internment of Japanese-Americans as a precedent for a Muslim registry
One can foresee a case on appeal where the Trump admin’s SG cites Korematsu favorably while arguing the Constitutionality of a Muslim registry.
Or, they do what’s been done before and define the registry as immigrants from Muslim countries and bypass the matter. But will this capture everyone they want to capture? And is this a distinction without a difference from a civil rights perspective?
Adam: They’re not going to have a registration program for citizen Muslims, and they’re going to hold that up as a compromise. That’s partly because any action that requires citing Korematsu favorably is doomed. Korematsu may have set out the strict liability standard for laws that facially categorizes on the basis of race, it is NOT good law. For one, no law/other state action that facially categorizes on the basis of race has been upheld by the Court since Korematsu except in the area of affirmative action. For another:
Judicial overruling is not the only way that a decision can lose its status as “law.” Korematsu has been, in the words of Justice Stephen Breyer, “thoroughly discredited”: by Congress, by the Executive Branch, and by the federal judiciary. Scholars and judges have long treated the decision as part of an “anti-canon”—decisions so thoroughly and unanimously repudiated that they exemplify what our law is not. No court treats Korematsu as precedent worthy of being followed. Quite to the contrary: it is routine for judicial nominees to expressly disavow the decision. Chief Justice Roberts did that in his confirmation hearings in 2005; so did Justice Alito in 2006 and Justice Sotomayor in 2009. Justice Scalia ranked Korematsu with Dred Scott as a paragon of injustice. “It is fair to say,” Professor Jamal Greene wrote five years ago in the Harvard Law Review, “that Korematsu is almost uniformly recognized by serious lawyers and judges to be bad precedent, indeed so bad that its use by one’s opponent is likely to prompt a vociferous and public denial.” . . .
No decent person can view the internment as any kind of “precedent” for acceptable government behavior. And no passable lawyer treats the Supreme Court’s decision in Korematsu as good law.