The Supremes

[JimmyJames 12271]

2 minutes ago, fattyflattie said:

That was Hugo’s schtick. A bot from “LSU” with 50k posts, all political. 
 

Johnnys biggest troll jobs were drunk posting his rats fucking campaign donations to Cruz. No different than the hundreds of folks here fellating each other while donating to Act Blue/Beto/Bernie. Same same, different $$ amounts. 

There was no doubt hugo was spamming the board. Hell he started a shitload of the threads in here. Maybe it’s just me but that’s different than trolling.

He hasn’t posted much lately though, while the sack seems to have upped his troll game after a long break. Maybe they’re the same person then just riding whatever wave is better trolling at the time. 

[Johnny Sack 8397]

 

[henrygandorf 29228]

6 hours ago, yoladu said:

Please tell me this is brilliant sarcasm.

it is neither one of those things.

[JimmyJames 12271]

Just now, Johnny Sack said:

 

More honest discussion goin on from the sack right here. Just an alternative viewpoint. Definitely not right wing trolling. Nuh uh.

[JimmyJames 12271]

But I’d like a justice who also will take into consideration the real-life impact of the decisions he or she will be making.”
 

The horror!

[fattyflattie 4640]

15 minutes ago, JimmyJames said:

There was no doubt hugo was spamming the board. Hell he started a shitload of the threads in here. Maybe it’s just me but that’s different than trolling.

I don’t think Hugo was a troll, though he definitely would sometimes.  I actually don’t know what he did to absorb that much political information on a constant basis. 

[Willfully Horn 8270]

45 minutes ago, Anastasis said:

Family over everything, and especially politics. 

 

But that message does not resonate with many here. 

The Unabomber’s bro says brah.

[Anastasis 23724]

Just now, Willfully Horn said:

The Unabomber’s bro says brah.

Clearly there are a lot of cloak room posters that have family members that resemble the unabomber. 

Probably a genetic loading issue. 

[Satchel 6983]

8 hours ago, Bravo said:

OK, the media asking questions to the WH press sec doesnt make it rise to any level where it can even be discussed here. Yes, it likely isnt going to happen but the WH isnt shooting down the rumors either.

There’s a reason Peter Doocey’s questions are not discussed here and it’s not entirely unrelated to him being a “stupid son of a bitch.”

[DDD Dad 14661]

2 hours ago, Anastasis said:

So being a self flagellating hall monitor is not something that is new to you?

 

2 hours ago, Bravo said:

My brother is a PhD molecular biologist. Scripps trained. Now doing research at a very large public institution in NW state. One of the smartest people I know. Also, a UT product. Hook em. He was more conservative than me. WAS. Now he his slightly left of Bernie. It was a radical change very fast. You know what did it? He dated then married a near communist. Seriously. I have had lively fun thanksgiving discussions with her and she said Russia and China just did it wrong. Anyway, within 1 yr my conservative bro went so hard left I thought something was mentally wrong with him. P undefeated. Holidays are very fun. lul Here is the good thing though. We don't hate each other for our politics. We separate it like normal people. People are not defined by who they vote for. 

Did you marry a liberal? ha

I can see why your father liked him better. 

[Satchel 6983]

1 hour ago, Bravo said:

I guess you missed the NBC reporter? Why leave that off?

Okay, so that’s two. What else did I miss?

[Satchel 6983]

3 minutes ago, Bravo said:

you want more?

Yes please.

[Satchel 6983]

1 minute ago, Bravo said:

Boston Herald?

https://www.bostonherald.com/2022/01/27/kamala-harris-to-supreme-court-would-open-the-vp-door-for-hillary-clinton/

BTW it is never going to happen.

I think the operative term is click bait.

[TwiceHorn 32092]

2 hours ago, JimmyJames said:

But I’d like a justice who also will take into consideration the real-life impact of the decisions he or she will be making.”
 

The horror!

Well, the funny thing is, at the Supreme Court level, for the controversial decisions, there is no "law" in the sense that most of the lawdogs practice.

Us workaday lawdogs come across things that could go either way using pretty established law, where things slip right into the cracks or interstices of existing law, that's why we have jobs.  And those can be tough calls.

But it's not quite like that up there.  To say that law is "applied" at the Supreme Court, and other factors are excluded, is foolishness.  Instead of things falling into small cracks, there's usually some sort of crevasse presented between the two sides and the justices have to bridge it or fill it, and there's no "law" to supply the answer, or really even to guide it much.

However, conservative justices are pretty adept at applying procedural law in a punctilious way to avoid reaching the big questions for as long as possible, as amply demonstrated by the treatment of SB8.

There's a foolishness in Hirono's comment and in the response to it.

[Johnny Sack 8397]

Mazie Hirono has a Hank Johnson level IQ.  She isn't fit to run a lemonade stand.

[Nice Guy Eddie 13741]

quote from Hawley on CNN. 

Sen. Josh Hawley, a member of the Senate Judiciary Committee, told CNN. "I think it sends the wrong signal to say that, 'Well if a person is of a certain ethnic background, that we don't care what their record is, we don't care what their substantive beliefs are.' That would be extraordinary."

Yes, Hawley that is exactly what Biden said and expects. He has zero care of the background but only their skin tone. 🙄

['stache 22145]

12 hours ago, JimmyJames said:

But I’d like a justice who also will take into consideration the real-life impact of the decisions he or she will be making.”
 

The horror!

The correct term is "public policy" considerations, which rarely form the basis of a decision except for certain narrow circumstances. It's been happening since the formation of courts, including back in England. But yeah, nice headline, lol.

[WhatTheBuck 28935]

On 1/26/2022 at 11:05 PM, Planet Houston said:

You’re just being dishonest

Well, duh. That’s why it’s a waste of time to engage him.

[WhatTheBuck 28935]

On 1/26/2022 at 10:40 PM, Satchel said:

Clarence is an affirmative action jurist who occupies space on the Supreme Court.

Benefitted from affirmative action, is opposed to affirmative action. Piece of shit.

[Chad Fuck 18163]

Benefitted from affirmative action, is opposed to affirmative action. Piece of shit.

It’s the GQP way. I deserve what I got, bootstraps and all. The rest of y’all schlubs can get fucked. Abbott and closing the courthouse doors, etc. Pulling up the ladder behind them is a bedrock principle for these guys.

[TwiceHorn 32092]

3 minutes ago, WhatTheBuck said:

Benefitted from affirmative action, is opposed to affirmative action. Piece of shit.

Not defending Thomas, because I think he is grotesque, but I guess it is theoretically possible to have benefited from a policy but still think it's a bad one.  Especially one that, like affirmative action, has kind of a "sell by" or "sunset" date.

Not that I think affirmative action has reached the sell by date.  I used to, but not so much anymore.

Also, it occurs to me that the "sell by" date of affirmative action, which I think was originally conceived as the "end of racism," has no real end.  But, at some point, the cost of it will exceed the benefit.

It certainly has resulted in some odd and awkward outcomes, and, more than any single policy I can think of, contributed to white grievance.

[Johnny Sack 8397]

8 minutes ago, Chad Fuck said:

It’s the GQP way. I deserve what I got, bootstraps and all. The rest of y’all schlubs can get fucked. Abbott and closing the courthouse doors, etc. Pulling up the ladder behind them is a bedrock principle for these guys.

Would that be similar to using the filibuster 300+ times in the Trump era but now claiming the filibuster is Jim Crow 2.0?

Or is that different?

[yoladu 4191]

33 minutes ago, Nice Guy Eddie said:

quote from Hawley on CNN. 

Sen. Josh Hawley, a member of the Senate Judiciary Committee, told CNN. "I think it sends the wrong signal to say that, 'Well if a person is of a certain ethnic background, that we don't care what their record is, we don't care what their substantive beliefs are.' That would be extraordinary."

yeah, that is not what is happening here. Biden isn't nominating a barista or a sandwich artist.

Oh , and good job on his pronoun usage, Josh. So woke.

[JimmyJames 12271]

7 minutes ago, Johnny Sack said:

Would that be similar to using the filibuster 300+ times in the Trump era but now claiming the filibuster is Jim Crow 2.0?

Or is that different?

Look at the big brain on sack! 
 

Hard hitting analysis with every post. 

[Chad Fuck 18163]

13 minutes ago, JimmyJames said:

Look at the big brain on sack! 
 

Hard hitting analysis with every post. 

Deflect! Deflect! 

 

22 minutes ago, Johnny Sack said:

Would that be similar to using the filibuster 300+ times in the Trump era but now claiming the filibuster is Jim Crow 2.0?

Or is that different?

No.  It would be more like inheriting a bunch of money, then thinking that you actually did something to deserve it.  

[Johnny Sack 8397]

10 minutes ago, Chad Fuck said:

Deflect! Deflect! 

 

No.  It would be more like inheriting a bunch of money, then thinking that you actually did something to deserve it.  

Cool.  Who did that?

[Johnny Sack 8397]

Interesting question is whether the VP has the constitutional authority to break ties on confirmations.  From Harvard Con Law professor Laurence Tribe.

https://archive.is/qPnVS

 

No hiding behind Pence’s skirt on the Supreme Court nomination

The vice president doesn’t have the power to break a tie on the appointment.

By Laurence H. TribeUpdated September 23, 2020, 10:36 a.m.

 

In the coming weeks, certain Republican senators running for reelection will find it convenient to tell opponents of President Trump’s Supreme Court nomination that they bear no responsibility for the damage this rushed appointment will do to the Affordable Care Act, Roe v. Wade, and other court rulings their moderate supporters care about. They will say that even if they did join Senators Lisa Murkowski of Alaska and Susan Collins of Maine in voting against confirming a precedent-shattering nominee this close to the election, the vote would be 50-50 and Vice President Mike Pence would break the tie to put that nominee on the court. They are wrong.

 

While the vice president has the power to cast a tiebreaking vote to pass a bill, the Constitution does not give him the power to break ties when it comes to the Senate’s “Advice and Consent” role in approving presidential appointments to the Supreme Court.

 

You don’t have to take my word for it. Alexander Hamilton said the same thing way back in 1788, in Federalist No. 69: “In the national government, if the Senate should be divided, no appointment could be made.” Hamilton contrasted that rule with how appointments worked back then in his home state of New York, where the governor actually did have the power to break ties to confirm nominations to New York state offices.

 

Consistent with Hamilton’s understanding, as two thoughtful recent scholarly analyses have pointed out, no vice president in our history has ever cast a tiebreaking vote to confirm an appointment to the Supreme Court. If Pence tried to cast the deciding vote to confirm Trump’s nomination to replace Justice Ruth Bader Ginsburg, who died last week at age 87, it would be the first time that has ever happened. That should matter to everyone — it certainly matters (or used to matter) to “originalists,” who emphasize the importance of history when interpreting our Constitution.

 

In fact, from our founding until 2018, no vice president had even cast a tiebreaking vote to confirm an appointment to a lower federal court. That nearly 230 years of unbroken historical practice ended when Pence cast the tiebreaking vote to confirm Jonathan Kobes to a seat on a lower federal court in December 2018. (Some may point to a tiebreaking vote that then-Vice President George H.W. Bush cast in July 1986, relating to the confirmation of Daniel Manion to a lower federal court, but Manion had already been confirmed by a previous 48-46 vote, without Bush participating. The tie that Bush broke was a later vote on a “motion to reconsider,” asking the Senate to undo its earlier vote confirming Manion. A vice president could arguably be permitted to break ties on votes concerning Senate procedure, even in the judicial nomination context, as long as he or she does not break ties on the ultimate confirmation vote — which Bush did not do.)

 

But there is much more to this than historical practice. Giving the vice president tiebreaking power over judicial appointments would also break the Framers' careful constitutional structure.

 

When it comes to legislation, the vice president’s tiebreaking power affects only half of the lawmaking process: the vice president can break a tie in the Senate, but has zero say in the House of Representatives. Breaking a tie on judicial appointments, though, would give the vice president power over the entire appointments process, since it is only the Senate that weighs in on such matters. A thumb on part of the scale in the legislative process is hugely different from single-handedly tipping the entire scale when it comes to confirming justices — justices who will sit in judgment over the work of the other two branches, potentially including disputes over the upcoming election itself, in which Pence obviously has the most direct interest imaginable.

 

For those who care about the details, Hamilton’s view and the historical practice (up until this administration) is confirmed by the structure and drafting history of our Constitution. As a structural matter, the provision granting the vice president the power to break ties in the Senate is located in Article I, which addresses Legislative Power. By contrast, the Senate’s “Advice and Consent” power over judicial appointments appears in Article II, making it a form of power wielded by the Senate that is executive, not legislative, in nature. The vice president has some power to influence legislation, by casting a tiebreaking vote in the Senate, while the Senate has some power to influence executive appointments, by granting or withholding consent. Structurally, the vice president cannot smuggle his Article I legislative tiebreaking power into Article II to undermine the Senate’s unique Article II executive power of advice and consent.

 

As for the drafting history of the “Advice and Consent” clause, the Framers first considered a provision that "Judges shall be nominated by the Executive, and such nomination shall become an appointment if not disagreed to by the [Senate].” But they rejected that language in favor of the provision that ultimately made its way into our Constitution: “[t]he President . . . shall nominate and by and with the advice and consent of the Senate appoint . . . Judges of the Supreme Court.”

 

That shift in language matters a lot — but only in the context of a tie. Under the first formulation, a tie favors the president, because the Senate cannot muster a majority to “disagree” with the appointment, while under the second — which became our constitutional law — a tie works against the president, because the Senate cannot muster a majority to “consent” to the appointment, leaving the nominee unconfirmed. But if the vice president is able to cast a tiebreaking vote, the difference is meaningless: The vice president decides whether the appointment goes through regardless of whether the standard is “if not disagreed to” or is “with the … consent.” Surely the Founders would not have spent their time and effort changing this language, which matters only when such votes are tied, if they understood the vice president had the power to break those ties.

 

The bottom line is this: Don’t let Senators Cory Gardner of Colorado, Thom Tillis of North Carolina, or any others hide behind Pence’s skirt on this issue. Every single one of them has the power, standing alone, to defeat this nomination and hold Senate Republicans to the same “rule” they applied in 2016.

 

Laurence H. Tribe, the Carl M. Loeb University Professor and professor of constitutional law emeritus at Harvard Law School, is coauthor, most recently, of “To End A Presidency: The Power of Impeachment” (with Joshua Matz). Follow him on Twitter @tribelaw.

[wildcat09 29597]

1 hour ago, TwiceHorn said:

Not defending Thomas, because I think he is grotesque, but I guess it is theoretically possible to have benefited from a policy but still think it's a bad one.  Especially one that, like affirmative action, has kind of a "sell by" or "sunset" date.

Not that I think affirmative action has reached the sell by date.  I used to, but not so much anymore.

Also, it occurs to me that the "sell by" date of affirmative action, which I think was originally conceived as the "end of racism," has no real end.  But, at some point, the cost of it will exceed the benefit.

It certainly has resulted in some odd and awkward outcomes, and, more than any single policy I can think of, contributed to white grievance.

The funny thing about Thomas and affirmative action is that he blames it for the fact that he didn't get any big law offers when he graduated Yale Law School in 1974. From a 2013 article:

Quote

Thomas said he went on interviews with one "high-priced lawyer" after another who didn't take him seriously because they thought he got special treatment.

"Many asked pointed questions, unsubtly suggesting they doubted I was as smart as my grades indicated," Thomas told ABC News.

It doesn't seem to occur to him that none of these guys offered him a job because they were racist. Even if he was an affirmative action admission to Yale Law School, it wouldn't have impacted the grades he got once he was there and everyone hiring would've known that. He couldn't get a job he wanted because he was black and the people in control of hiring for those jobs didn't want to hire black people, and that would've been the case whether or not Yale had an affirmative action problem. His politics are so wound up in his personal grievances over some real serious shit he's had to deal with in his life and yet taken the strangest lessons from. 

I think this is a good thread from a different black perspective:

 

 

['stache 22145]

36 minutes ago, Johnny Sack said:

Interesting question is whether the VP has the constitutional authority to break ties on confirmations.  From Harvard Con Law professor Laurence Tribe.

https://archive.is/qPnVS

 

No hiding behind Pence’s skirt on the Supreme Court nomination

The vice president doesn’t have the power to break a tie on the appointment.

By Laurence H. TribeUpdated September 23, 2020, 10:36 a.m.

 

In the coming weeks, certain Republican senators running for reelection will find it convenient to tell opponents of President Trump’s Supreme Court nomination that they bear no responsibility for the damage this rushed appointment will do to the Affordable Care Act, Roe v. Wade, and other court rulings their moderate supporters care about. They will say that even if they did join Senators Lisa Murkowski of Alaska and Susan Collins of Maine in voting against confirming a precedent-shattering nominee this close to the election, the vote would be 50-50 and Vice President Mike Pence would break the tie to put that nominee on the court. They are wrong.

 

While the vice president has the power to cast a tiebreaking vote to pass a bill, the Constitution does not give him the power to break ties when it comes to the Senate’s “Advice and Consent” role in approving presidential appointments to the Supreme Court.

 

You don’t have to take my word for it. Alexander Hamilton said the same thing way back in 1788, in Federalist No. 69: “In the national government, if the Senate should be divided, no appointment could be made.” Hamilton contrasted that rule with how appointments worked back then in his home state of New York, where the governor actually did have the power to break ties to confirm nominations to New York state offices.

 

Consistent with Hamilton’s understanding, as two thoughtful recent scholarly analyses have pointed out, no vice president in our history has ever cast a tiebreaking vote to confirm an appointment to the Supreme Court. If Pence tried to cast the deciding vote to confirm Trump’s nomination to replace Justice Ruth Bader Ginsburg, who died last week at age 87, it would be the first time that has ever happened. That should matter to everyone — it certainly matters (or used to matter) to “originalists,” who emphasize the importance of history when interpreting our Constitution.

 

In fact, from our founding until 2018, no vice president had even cast a tiebreaking vote to confirm an appointment to a lower federal court. That nearly 230 years of unbroken historical practice ended when Pence cast the tiebreaking vote to confirm Jonathan Kobes to a seat on a lower federal court in December 2018. (Some may point to a tiebreaking vote that then-Vice President George H.W. Bush cast in July 1986, relating to the confirmation of Daniel Manion to a lower federal court, but Manion had already been confirmed by a previous 48-46 vote, without Bush participating. The tie that Bush broke was a later vote on a “motion to reconsider,” asking the Senate to undo its earlier vote confirming Manion. A vice president could arguably be permitted to break ties on votes concerning Senate procedure, even in the judicial nomination context, as long as he or she does not break ties on the ultimate confirmation vote — which Bush did not do.)

 

But there is much more to this than historical practice. Giving the vice president tiebreaking power over judicial appointments would also break the Framers' careful constitutional structure.

 

When it comes to legislation, the vice president’s tiebreaking power affects only half of the lawmaking process: the vice president can break a tie in the Senate, but has zero say in the House of Representatives. Breaking a tie on judicial appointments, though, would give the vice president power over the entire appointments process, since it is only the Senate that weighs in on such matters. A thumb on part of the scale in the legislative process is hugely different from single-handedly tipping the entire scale when it comes to confirming justices — justices who will sit in judgment over the work of the other two branches, potentially including disputes over the upcoming election itself, in which Pence obviously has the most direct interest imaginable.

 

For those who care about the details, Hamilton’s view and the historical practice (up until this administration) is confirmed by the structure and drafting history of our Constitution. As a structural matter, the provision granting the vice president the power to break ties in the Senate is located in Article I, which addresses Legislative Power. By contrast, the Senate’s “Advice and Consent” power over judicial appointments appears in Article II, making it a form of power wielded by the Senate that is executive, not legislative, in nature. The vice president has some power to influence legislation, by casting a tiebreaking vote in the Senate, while the Senate has some power to influence executive appointments, by granting or withholding consent. Structurally, the vice president cannot smuggle his Article I legislative tiebreaking power into Article II to undermine the Senate’s unique Article II executive power of advice and consent.

 

As for the drafting history of the “Advice and Consent” clause, the Framers first considered a provision that "Judges shall be nominated by the Executive, and such nomination shall become an appointment if not disagreed to by the [Senate].” But they rejected that language in favor of the provision that ultimately made its way into our Constitution: “[t]he President . . . shall nominate and by and with the advice and consent of the Senate appoint . . . Judges of the Supreme Court.”

 

That shift in language matters a lot — but only in the context of a tie. Under the first formulation, a tie favors the president, because the Senate cannot muster a majority to “disagree” with the appointment, while under the second — which became our constitutional law — a tie works against the president, because the Senate cannot muster a majority to “consent” to the appointment, leaving the nominee unconfirmed. But if the vice president is able to cast a tiebreaking vote, the difference is meaningless: The vice president decides whether the appointment goes through regardless of whether the standard is “if not disagreed to” or is “with the … consent.” Surely the Founders would not have spent their time and effort changing this language, which matters only when such votes are tied, if they understood the vice president had the power to break those ties.

 

The bottom line is this: Don’t let Senators Cory Gardner of Colorado, Thom Tillis of North Carolina, or any others hide behind Pence’s skirt on this issue. Every single one of them has the power, standing alone, to defeat this nomination and hold Senate Republicans to the same “rule” they applied in 2016.

 

Laurence H. Tribe, the Carl M. Loeb University Professor and professor of constitutional law emeritus at Harvard Law School, is coauthor, most recently, of “To End A Presidency: The Power of Impeachment” (with Joshua Matz). Follow him on Twitter @tribelaw.

So Pence did in in 2018 for a lower court judge, without complaint from the democrats. Is that judge illegitimate? Is it going to be an issue this time because it's SCOTUS despite there being no difference constitutionally between lower court and high court judges under the advise and consent clause? 

Also, the senate parliamentarian would have first say in interpreting the rule, and if that person rules that the VP cannot break the tie, the Senate can vote to overturn that decision, and VP can unquestionably cast that tie-breaking vote. Then maybe a lawsuit would be the only way to change that process.

Can you think of any non-partisan reason why democrats didn't challenge Pence's vote in 2018 and why republicans would challenge a tie-breaking vote here?

Edit: To add that this is actually an interesting and legitimate question. But I think Pence set the precedent in 2018 and it would be a huge hill to overcome now just because a different party holds the VP spot.

Edited January 28, 2022 by 'stache

[TwiceHorn 32092]

33 minutes ago, Johnny Sack said:

Interesting question is whether the VP has the constitutional authority to break ties on confirmations.  From Harvard Con Law professor Laurence Tribe.

https://archive.is/qPnVS

 

No hiding behind Pence’s skirt on the Supreme Court nomination

The vice president doesn’t have the power to break a tie on the appointment.

By Laurence H. TribeUpdated September 23, 2020, 10:36 a.m.

 

In the coming weeks, certain Republican senators running for reelection will find it convenient to tell opponents of President Trump’s Supreme Court nomination that they bear no responsibility for the damage this rushed appointment will do to the Affordable Care Act, Roe v. Wade, and other court rulings their moderate supporters care about. They will say that even if they did join Senators Lisa Murkowski of Alaska and Susan Collins of Maine in voting against confirming a precedent-shattering nominee this close to the election, the vote would be 50-50 and Vice President Mike Pence would break the tie to put that nominee on the court. They are wrong.

 

While the vice president has the power to cast a tiebreaking vote to pass a bill, the Constitution does not give him the power to break ties when it comes to the Senate’s “Advice and Consent” role in approving presidential appointments to the Supreme Court.

 

You don’t have to take my word for it. Alexander Hamilton said the same thing way back in 1788, in Federalist No. 69: “In the national government, if the Senate should be divided, no appointment could be made.” Hamilton contrasted that rule with how appointments worked back then in his home state of New York, where the governor actually did have the power to break ties to confirm nominations to New York state offices.

 

Consistent with Hamilton’s understanding, as two thoughtful recent scholarly analyses have pointed out, no vice president in our history has ever cast a tiebreaking vote to confirm an appointment to the Supreme Court. If Pence tried to cast the deciding vote to confirm Trump’s nomination to replace Justice Ruth Bader Ginsburg, who died last week at age 87, it would be the first time that has ever happened. That should matter to everyone — it certainly matters (or used to matter) to “originalists,” who emphasize the importance of history when interpreting our Constitution.

 

In fact, from our founding until 2018, no vice president had even cast a tiebreaking vote to confirm an appointment to a lower federal court. That nearly 230 years of unbroken historical practice ended when Pence cast the tiebreaking vote to confirm Jonathan Kobes to a seat on a lower federal court in December 2018. (Some may point to a tiebreaking vote that then-Vice President George H.W. Bush cast in July 1986, relating to the confirmation of Daniel Manion to a lower federal court, but Manion had already been confirmed by a previous 48-46 vote, without Bush participating. The tie that Bush broke was a later vote on a “motion to reconsider,” asking the Senate to undo its earlier vote confirming Manion. A vice president could arguably be permitted to break ties on votes concerning Senate procedure, even in the judicial nomination context, as long as he or she does not break ties on the ultimate confirmation vote — which Bush did not do.)

 

But there is much more to this than historical practice. Giving the vice president tiebreaking power over judicial appointments would also break the Framers' careful constitutional structure.

 

When it comes to legislation, the vice president’s tiebreaking power affects only half of the lawmaking process: the vice president can break a tie in the Senate, but has zero say in the House of Representatives. Breaking a tie on judicial appointments, though, would give the vice president power over the entire appointments process, since it is only the Senate that weighs in on such matters. A thumb on part of the scale in the legislative process is hugely different from single-handedly tipping the entire scale when it comes to confirming justices — justices who will sit in judgment over the work of the other two branches, potentially including disputes over the upcoming election itself, in which Pence obviously has the most direct interest imaginable.

 

For those who care about the details, Hamilton’s view and the historical practice (up until this administration) is confirmed by the structure and drafting history of our Constitution. As a structural matter, the provision granting the vice president the power to break ties in the Senate is located in Article I, which addresses Legislative Power. By contrast, the Senate’s “Advice and Consent” power over judicial appointments appears in Article II, making it a form of power wielded by the Senate that is executive, not legislative, in nature. The vice president has some power to influence legislation, by casting a tiebreaking vote in the Senate, while the Senate has some power to influence executive appointments, by granting or withholding consent. Structurally, the vice president cannot smuggle his Article I legislative tiebreaking power into Article II to undermine the Senate’s unique Article II executive power of advice and consent.

 

As for the drafting history of the “Advice and Consent” clause, the Framers first considered a provision that "Judges shall be nominated by the Executive, and such nomination shall become an appointment if not disagreed to by the [Senate].” But they rejected that language in favor of the provision that ultimately made its way into our Constitution: “[t]he President . . . shall nominate and by and with the advice and consent of the Senate appoint . . . Judges of the Supreme Court.”

 

That shift in language matters a lot — but only in the context of a tie. Under the first formulation, a tie favors the president, because the Senate cannot muster a majority to “disagree” with the appointment, while under the second — which became our constitutional law — a tie works against the president, because the Senate cannot muster a majority to “consent” to the appointment, leaving the nominee unconfirmed. But if the vice president is able to cast a tiebreaking vote, the difference is meaningless: The vice president decides whether the appointment goes through regardless of whether the standard is “if not disagreed to” or is “with the … consent.” Surely the Founders would not have spent their time and effort changing this language, which matters only when such votes are tied, if they understood the vice president had the power to break those ties.

 

The bottom line is this: Don’t let Senators Cory Gardner of Colorado, Thom Tillis of North Carolina, or any others hide behind Pence’s skirt on this issue. Every single one of them has the power, standing alone, to defeat this nomination and hold Senate Republicans to the same “rule” they applied in 2016.

 

Laurence H. Tribe, the Carl M. Loeb University Professor and professor of constitutional law emeritus at Harvard Law School, is coauthor, most recently, of “To End A Presidency: The Power of Impeachment” (with Joshua Matz). Follow him on Twitter @tribelaw.

Tribe is a smart dude, no question.  Even when I fancied myself conservative or Republican, his view was one worth considering, even if he was a flaming librul.

But of late, he's been so transparently political that he's lost a lot of credibility with me.

Steve Vladeck is now my sort of constitutional hero.  He has a librul bent, which I am ok with, but he's also pretty balanced.

[Johnny Sack 8397]

21 minutes ago, wildcat09 said:

The funny thing about Thomas and affirmative action is that he blames it for the fact that he didn't get any big law offers when he graduated Yale Law School in 1974. From a 2013 article:

It doesn't seem to occur to him that none of these guys offered him a job because they were racist. Even if he was an affirmative action admission to Yale Law School, it wouldn't have impacted the grades he got once he was there and everyone hiring would've known that. He couldn't get a job he wanted because he was black and the people in control of hiring for those jobs didn't want to hire black people, and that would've been the case whether or not Yale had an affirmative action problem. His politics are so wound up in his personal grievances over some real serious shit he's had to deal with in his life and yet taken the strangest lessons from. 

I think this is a good thread from a different black perspective:

 

 

Yale Law is pass fail.

[Johnny Sack 8397]

23 minutes ago, 'stache said:

So Pence did in in 2018 for a lower court judge, without complaint from the democrats. Is that judge illegitimate? Is it going to be an issue this time because it's SCOTUS despite there being no difference constitutionally between lower court and high court judges under the advise and consent clause? 

Also, the senate parliamentarian would have first say in interpreting the rule, and if that person rules that the VP cannot break the tie, the Senate can vote to overturn that decision, and VP can unquestionably cast that tie-breaking vote. Then maybe a lawsuit would be the only way to change that process.

Can you think of any non-partisan reason why democrats didn't challenge Pence's vote in 2018 and why republicans would challenge a tie-breaking vote here?

Edit: To add that this is actually an interesting and legitimate question. But I think Pence set the precedent in 2018 and it would be a huge hill to overcome now just because a different party holds the VP spot.

I think they probably do have the authority the way I read the Constitution.  Tribe does not.  Unless he changes his mind.  He's a giant in the Con Law field.  I am not.  And prior precedent of government action from 2018 means almost nothing to a legal challenge.  No court has ever addressed it.

I don't think it will be an issue.  I think this nomination gets closer to 60 votes than 50.

Edited January 28, 2022 by Johnny Sack

[Johnny Sack 8397]

24 minutes ago, wildcat09 said:

The funny thing about Thomas and affirmative action is that he blames it for the fact that he didn't get any big law offers when he graduated Yale Law School in 1974. From a 2013 article:

It doesn't seem to occur to him that none of these guys offered him a job because they were racist. Even if he was an affirmative action admission to Yale Law School, it wouldn't have impacted the grades he got once he was there and everyone hiring would've known that. He couldn't get a job he wanted because he was black and the people in control of hiring for those jobs didn't want to hire black people, and that would've been the case whether or not Yale had an affirmative action problem. His politics are so wound up in his personal grievances over some real serious shit he's had to deal with in his life and yet taken the strangest lessons from. 

I think this is a good thread from a different black perspective:

 

 

Maybe we should have an Asian on the court first.  They are the ones really getting fucked by affirmative action.  Be nice to have their perspective.  We have none on the Court now. 

[wildcat09 29597]

I'll make you a deal. Alito resigns and we'll make sure an Asian man replaces him. 

[OneOfTheOutOfFocusGuys 2153]

21 minutes ago, 'stache said:

So Pence did in in 2018 for a lower court judge, without complaint from the democrats. Is that judge illegitimate? Is it going to be an issue this time because it's SCOTUS despite there being no difference constitutionally between lower court and high court judges under the advise and consent clause? 

Also, the senate parliamentarian would have first say in interpreting the rule, and if that person rules that the VP cannot break the tie, the Senate can vote to overturn that decision, and VP can unquestionably cast that tie-breaking vote. Then maybe a lawsuit would be the only way to change that process.

Can you think of any non-partisan reason why democrats didn't challenge Pence's vote in 2018 and why republicans would challenge a tie-breaking vote here?

Edit: To add that this is actually an interesting and legitimate question. But I think Pence set the precedent in 2018 and it would be a huge hill to overcome now just because a different party holds the VP spot.

agree.  i found that weird he pointed out pence just did it in 2018, as though the procedures are different between different federal courts.

[Johnny Sack 8397]

2 minutes ago, wildcat09 said:

I'll make you a deal. Alito resigns and we'll make sure an Asian man replaces him. 

Let me pick the Asian and you got it.

[Harrison Bergeron 1798]

2 hours ago, Johnny Sack said:

Would that be similar to using the filibuster 300+ times in the Trump era but now claiming the filibuster is Jim Crow 2.0?

Or is that different?

 

 

Edited January 28, 2022 by Harrison Bergeron

[TheStoicPaisano 9953]

Sack drafts D’Souza?

[wildcat09 29597]

6 minutes ago, Johnny Sack said:

Let me pick the Asian and you got it.

You’d pick John Yoo, wouldn’t you?

['stache 22145]

1 minute ago, wildcat09 said:

You’d pick John Yoo, wouldn’t you?

He'd get waterboarded if he didn't, right?

[Johnny Sack 8397]

7 minutes ago, wildcat09 said:

You’d pick John Yoo, wouldn’t you?

No.  I want justice Dam Son or Sum Tim Wong.

[jimmyjazz 47259]

22 minutes ago, Johnny Sack said:

Yale Law is pass fail.

That does not appear to be the case, although it might be true for first-semester students (according to wiki, so, yeah).

 

 

[Johnny Sack 8397]

My friends that went there said it was pass fail and no one fails unless they don't show up for a final.  They don't have grades or GPAs.  You can get a high pass.  Seems like same thing your graphic illustrates.

You can't tell much from a Yale resume.  I have seen plenty.  Other than they got into Yale.

[Johnny Sack 8397]

2 minutes ago, Bravo said:

so pretty much get in and show up and you get a diploma more or less?

Same as pretty much any Ivy League law school.  They figure if you are smart/driven enough to get in, they don't need to weed you out.

[alincoln 2391]

1 minute ago, Johnny Sack said:

My friends that went there said it was pass fail and no one fails unless they don't show up for a final.  They don't have grades or GPAs.  You can get a high pass.  Seems like same thing your graphic illustrates.

You can't tell much from a Yale resume.  I have seen plenty.  Other than they got into Yale.

And that whole Yale thing . . .

[Johnny Sack 8397]

2 minutes ago, alincoln said:

And that whole Yale thing . . .

Yeah, they got in.  Which is hard to do.

 

[Harrison Bergeron 1798]

7

Edited January 28, 2022 by Harrison Bergeron

[Harrison Bergeron 1798]

3 hours ago, Johnny Sack said:

Would that be similar to using the filibuster 300+ times in the Trump era but now claiming the filibuster is Jim Crow 2.0?

Or is that different?

 

[Longhorn_Fan68 34106]

16 hours ago, workswithseed said:

Aggies and brilliant aren't two words you put together, unless they happen to be next to bonfires.

even for you, this is pretty low.

3 hours ago, TwiceHorn said:

Not defending Thomas, because I think he is grotesque, but I guess it is theoretically possible to have benefited from a policy but still think it's a bad one.  Especially one that, like affirmative action, has kind of a "sell by" or "sunset" date.

Not that I think affirmative action has reached the sell by date.  I used to, but not so much anymore.

Also, it occurs to me that the "sell by" date of affirmative action, which I think was originally conceived as the "end of racism," has no real end.  But, at some point, the cost of it will exceed the benefit.

It certainly has resulted in some odd and awkward outcomes, and, more than any single policy I can think of, contributed to white grievance.

this is fucking good post.

[yoladu 4191]

1 hour ago, 'stache said:

So Pence did in in 2018 for a lower court judge, without complaint from the democrats. Is that judge illegitimate? Is it going to be an issue this time because it's SCOTUS despite there being no difference constitutionally between lower court and high court judges under the advise and consent clause? 

Also, the senate parliamentarian would have first say in interpreting the rule, and if that person rules that the VP cannot break the tie, the Senate can vote to overturn that decision, and VP can unquestionably cast that tie-breaking vote. Then maybe a lawsuit would be the only way to change that process.

Can you think of any non-partisan reason why democrats didn't challenge Pence's vote in 2018 and why republicans would challenge a tie-breaking vote here?

Edit: To add that this is actually an interesting and legitimate question. But I think Pence set the precedent in 2018 and it would be a huge hill to overcome now just because a different party holds the VP spot.

Do you think McConnell cares about precedent or how it might look?