Reports the Politico: Schumer to fight new Bush high court picks
New York Sen. Charles E. Schumer, a powerful member of the Democratic leadership, said Friday the Senate should not confirm another U.S. Supreme Court nominee under President Bush “except in extraordinary circumstances.”“We should reverse the presumption of confirmation,” Schumer told the American Constitution Society convention in Washington. “The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito.”
To which John Hinderaker of Power Line responds in the headline of a post: Is This A Coup? If Not, What Is It? and in the post likens Schumer’s statement to “announc[ing] a change in the Constitution.”
There are so many things to say here that the mind flies in multiple directions all at once. As such, I’ll start with the most ridiculous and work my way out: no, John, this isn’t a coup and if you don’t know what one is, I suggest taking a Comparative Politics course at a local college of university. Here’s a brief def to keep you going until then: coups are extralegal seizures of power that usually result in a change in the control of the government. Quite frequently there is blood split in the process, although not always. Coups typically result in the suspension of the existing constitutional or legal order for an indefinite period of time and in many cases lead to a restructuring of the rules that govern control of the state. As such, no–no coup here.
That leads me to the next ridiculous point, the idea that this is a “change in the Constitution.” Well, as they are supposed to teach in basic civics classes in middle and high school, and as is noted in every college-level Intro to US Government class in land, there is this little thing in the Constitution called “advice and consent” and it belongs to the Senate and it governs things like, well, appointments to the Supreme Court of the United States (Barbara O’Brien has it quoted this morning in case Google isn’t working at the moment). As such, if Schumer wants to try and use the constitutionally mandated powers of the Senate to attempt to block SCOTUS nominations by this president, it is wholly constitutional for him to do so. So no–no change to the Constitution.
This then leads to some Politics 101 with a dash of Math 101. You see, John, Schumer is what we call in the trade a “politician” and politicians are often known for their deployment of bluster. They frequently say things that they would like to be true, but may not, at the end of the day actually be true. And this is where the math comes in: Schumer is only 1 guy out of 100 in the Senate, and while he has considerable power on the Judiciary Committee, he may or may not be able to leverage that position to block a nominee. If he could, it would require the help of his friends (other Senators who would also be deploying their constitutional powers). That they might support his move would be expected, by the way, as the friends in question would prefer that Bush not make any more appointments to the Court.
Now, John, one may or may not like this situation, but it is wholly legal and constitutional. Indeed, you may recall many of your own political allies deploying the phrase “elections have consequences” back when the GOP controlled the Senate and the Democrats were blocking judicial nominations. Well, we had one of those elections thingies back in November and the Democrats won the Senate. This means, again back to the Math bit, that they have the votes to block a nomination if they so choose. Again, setting aside whether one likes that or not, it remains a firmly established constitutional fact.
Oh, and back to the bluster thing, there aren’t any vacancies on the Court at the moment, and barring someone’s death, there isn’t going to be one before Bush leaves office. As such, the whole discussion is academic anyway.
As a side note, let me state that those (the President included) who seem to think that the Congress exists simply to approve what the President has asked for (like Bush stating that Congress is simply supposed to fund the war and otherwise be quiet) are all showing a great deal of disrespect to the Constitutional order.
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July 28th, 2007 at 12:16 pm
[...] See also JeffFecke at Shakesville and Down With Tyranny. Update: See also Dr. Steven Taylor, one of the few honest small-government conservatives left in America: [...]
July 28th, 2007 at 12:47 pm
Steven, whatever are you thinking? You’ve thrown perfectly rational, sane water (if a bit frigid) all over John Hindraker’s bit of blustery burble, and just made a terrible mess!
(Very well said!)
July 28th, 2007 at 12:55 pm
Gracias and
July 28th, 2007 at 3:00 pm
I can’t believe it. Someone just compared Steven to Dorothy in the Wizard of Oz. LOL.
John doesn’t know what a coup attempt is, but I do. I was stationed in the Philippines during one attempted over throw of Corazon Aquino in 1987 and was flying to the Philippines at the time of the December 1989 attempted overthrow of Aquino. The second was pretty scary, my wife of six months was in Manila at the time and staying with relatives who didn’t have a phone.
Hindraker needs a reality check. Like having his family in a city where people can get killed while innocently walking the down street. That while he is forced to eat salisbury steak for lunch and dinner for two days straight. That will teach him what a coup is. Been there done that.
Bill
July 28th, 2007 at 6:50 pm
It seems you may want to add bluster to your own CV as well based on this post. It’s pretty clear that Hinderaker is engaging in hyperbole, especially since it he closes the relatively short post with this -
“Should a Supreme Court justice die or retire, and should Senate Democrats reject a series of highly-qualified Bush nominees, the Democrats will no doubt pay a price in 2008. So, as they say: bring it on!”
That doesn’t really sound like someone who is seriously proposing that a collapse of the Constitution is imminent.
July 28th, 2007 at 7:44 pm
I answered the question his post title asked. If that is bluster, then I suppose I am guilty.
July 29th, 2007 at 2:21 am
You are of course right that this is nothing like a coup and what Schumer is talking about is to the letter of the constitution. That being said, what Schumer is advocating — the essential refusal to consent to *anybody* Bush appoints, presumably in an effort to wait out the clock until there’s a Democrat in office in 2009, runs against the spirit of the Constitution. It’s also setting an unsettling precedent wherein we could have 1 or 2 (or more) vacancies for long stretches until the Senate and White House belong to the same party. It doesn’t take someone that believes the The Almighty Imperial Power of the Presidency to be seriously disturbed by this if it comes to pass, even if Hinderaker is blowing it far out of proportion.
July 29th, 2007 at 10:14 am
You are, of course, taking the scenario even further: the notion of 1 or 2 long-term vacancies. This is rather unlikely, to put it mildly.
In regards to Schumer, Bush and 2009–the degree to which the Democrats could run out the clock would very much, in practical terms, depend on when the vacancy occurred and how much of a fight the various sides wanted to have.
Certainly confirmation hearings for a a 3rd Bush appointee would be brutal and I suspect that if Bush didn’t appoint someone whom the Democrats could accept that the President would find himself stymied. That is a result of a confluence of a number of factors, not the least of which being a President with a 25% approval rating and less than a year and half in office.
Quite frankly, if the situation was reversed: a Democratic President in the end of a second term with poor public approval who was considered a wreck by the GOP and who had already filled 2 SCOTUS seats that a GOP controlled Senate would likely try to run out the clock until a Rep was in the WH if it was at all possible.
Indeed, I have no doubt that under such a scenario that Hinderaker would cheering the GOP on to run out said clock.
Do you have any doubt that I am right about that?
July 30th, 2007 at 9:10 am
Quite frankly, if the situation was reversed: a Democratic President in the end of a second term with poor public approval who was considered a wreck by the GOP and who had already filled 2 SCOTUS seats that a GOP controlled Senate would likely try to run out the clock until a Rep was in the WH if it was at all possible.
To the extent that they were doing so as transparently as Schumer suggests, that would be equally worthy of condemnation.
The problem with these confirmation fights is that it’s breaking the system. The Republican procedural blocking of Clinton nominees in his presidency (though at least they pretended to have other reasons) begat the Democratic procedural blocking of nominees in GWB’s presidency. Eventually I wonder if we’re just going to reach the point where every appointment will be a recess appointment. I don’t buy the notion that “this situation will not likely rear its situation again.” It won’t have to. It’ll just have to be comparable enough for the Senate leaders to make the case. The pretext becomes flimsier and flimsier until it becomes Senate tradition.
And of course Hinderaker would be cheering on Republicans doing the same thing. Partisan Democrats would be crying bloody murder. That’s all beside the point. The point is that in one case or the other, as their position on the issue flips, they’re going to be right at least half the time (on the basic position, though certainly not the hyperbole) just like they’re right half the time when it comes to denying nominees an up-or-down, full-senate vote. The whole “if-the-situation-were-reversed” is, in my mind, a ducking of the issue.
What’s frustrating to me is that just when I think that the system can’t get any more broken, someone comes along and suggests a way to make it just that.
July 31st, 2007 at 5:04 pm
Bush has appointed two Supreme Court Justices and a number of lower court judges who are openly hostile to the Constitution, as are many of his other appointees in government. Of course his nominees should be blocked - that’s been true since the day he was inaugurated.