Scalia is Dead, Long Live the King!

[Stephen Maturin]

Imagine my shock at reading that Mitch McConnell won't permit the Senate to consider Judge Garland's nomination.

[Dingfod]

Does he even hear the words that are coming out of his mouth?

[lpetrich]

Seems to me that the Republicans are playing Calvinball here. Playing that game involves loudly asserting changes in rules that one finds convenient.

[godfry n. glad]

Lessee....Getting a government check, but sits on his ass and does nothing.

What a bunch of welfare drones.

I hope they will implement pee testing on these slackers soon.

[The Man]

The most molten take I have read about the Supreme Court vacancy did not come from a right-winger. I’m not linking to the piece because a piece this ridiculous does not deserve more clicks. You can google it if you want. Note that the usage of cruise control appears in the original piece, as well as some additional emphases I was too lazy to copy.

GODDAMIT, THERE WILL ALWAYS BE SUPREME COURT SEATS UP FOR GRABS. IF WE LET THAT DEFINE HOW WE VOTE, WE WOULD NEVER, EVER MAKE ANY PROGRESS IN THIS COUNTRY. THEY’RE ALL OLD! ALL OF THEM! THEY HAVE ALWAYS BEEN OLD, AND THEY WILL ALWAYS BE OLD! YOU KNOW THIS MERRICK GARLAND DUDE THAT OBAMA NOMINATED? HE’S 63. THAT’S A “NEW” SUPREME COURT JUSTICE. THAT DUDE COULD DIE. AND SURE, WE COULD ALL DIE, AT ANY MOMENT, BUT HE’S LEGITIMATELY OLD ENOUGH TO DIE IN THE NEXT FOUR YEARS, JUST LIKE EVERY OTHER SUPREME COURT JUSTICE.

STOP TRYING TO STRONG-ARM SANDERS SUPPORTERS INTO VOTING BECAUSE SOME SUPREME COURT SEATS MAY BE UP FOR GRABS. JUST STOP. THEY ARE ALWAYS, ALWAYS, ALWAYS UP FOR GRABS. YES, SOME OF THE JUSTICES MIGHT DIE. YOU KNOW WHAT ELSE MIGHT HAPPEN? NONE OF THEM MAY DIE. WE HAVE NO IDEA, SO WHY SHOULD THAT DICTATE OUR VOTE?

I leave writing a punchline as an exercise for the reader.

[Nullifidian]

Victory for Unions as Supreme Court, Scalia Gone, Ties 4-4

It was the starkest illustration yet of how the sudden death of Justice Antonin Scalia last month has blocked the power of the court’s four remaining conservatives to move the law to the right.

A ruling allowing workers to refuse to pay the fees would have been the culmination of a decades-long campaign by a group of prominent conservative foundations aimed at weakening unions that represent teachers and other public employees. Tuesday’s deadlock denied them that victory, but it set no precedent and left the door open for further challenges once the Supreme Court is back at full strength.

[Kyuss Apollo]

Suck it, prominent conservative foundations.

[The Man]

While there are rumblings from a couple of less extremist Republicans that they may be willing to meet with Obama's nominee Merrick Garland, the vast majority of them remain unwilling even to schedule a hearing, because after all, Obama murdered Scalia with the same heart attack gun he used to murder Dead Breitbart, and it is the Christian right of the Republican Party to control the Supreme Court, so lalalalala can't hear you whoever heard of a presidential election in 2012 they obviously only count when a Republican gets elected.

However, via Balloon Juice and Charlie Pierce, some innovative thinkers (Slate's Dahlia Lithwick and Yale Law Journal's Matthew Stephenson amongst them) have made a modest proposal that may result in Obama getting his obvious attempt at court-packing instated anyway.

Simply put, the Senate's powers are listed in the Constitution as "advise and consent". However, what this means is never actually enumerated. A case could be made that, by refusing even to hold hearings on a nominee, Senate Republicans have vacated their powers of advice and consent, and have therefore forfeited their power to block a nominee. Quoth Stephenson:

It is generally assumed that the Constitution requires the Senate to vote to confirm the President's nominees to principal federal offices. This Essay argues, to the contrary, that when the President nominates an individual to a principal executive branch position, the Senate's failure to act on the nomination within a reasonable period of time can and should be construed as providing the Senate's tacit or implied advice and consent to the appointment. On this understanding, although the Senate can always withhold its constitutionally required consent by voting against a nominee, the Senate cannot withhold its consent indefinitely through the expedient of failing to vote on the nominee one way or the other. Although this proposal seems radical, and certainly would upset longstanding assumptions, the Essay argues that this reading of the Appointments Clause would not contravene the constitutional text, structure, or history. The Essay further argues that, at least under some circumstances, reading the Constitution to construe Senate inaction as implied consent to an appointment would have desirable consequences in light of deteriorating norms of Senate collegiality and of prompt action on presidential nominations.

Therefore, Lithwick proposes, Garland should, after a suitable enough period of time has passed, simply start showing up to the Supreme Court dressed as a justice:

Judge Garland has been nominated by President Obama. Senate Republicans refuse to give him a hearing. After a suitable period of time—let's say by the end of September of 2016—Judge Garland should simply suit up and take the vacant seat at the court. This would entail walking into the Supreme Court on the first Monday in October, donning an extra black robe, seating himself at the bench, sipping from the mighty silver milkshake cup before him, and looking like he belongs there, in the manner of George Costanza.

Really, what could the other justices do? They aren't going to have the marshals tackle him. He is, after all, the chief judge of the second most important court in the land, respected across the ideological spectrum. And in the absence of a Senate hearing on his nomination, one certainly might infer that the Senate has by now consented to his presence there... But more urgently, this is the kind of action—OK, "stunt"—that would draw attention to the fact that just because GOP senators want to pretend that Obama's Supreme Court nominee is invisible, doesn't mean that he has to play along. By my playbook, Garland could show up for work in a black robe every day in October, participate in oral arguments with a handful of incisive questions in November, and even start to write a few modest opinions in December, demonstrating how real his nomination is. By January, nobody will even remember that he never got a hearing!

What I love best about what I am calling the Reverse Bartleby is that Judge Garland would be achieving two vital goals: First, he would be doing his job and highlighting that this is precisely what Senate tantrum throwers are refusing to do. But second, he would be out-absurding the absurd, and bravely standing up for a principle: that the constitution, as Robert Jackson famously suggested, contemplates an effective government. And unlike what’s being modeled by most Republican senators, that principle is not something as ignoble as “we’ll blow up the court before we let it shift to the other side,” which looks more like hostage-taking than taking a stand. The additional points being made would include that the court functions better with nine judges than with eight, that if Republicans refuse to hold hearings, well, someone should solve that, and that advise and consent doesn’t mean that the NRA or the Koch brothers get a veto…

An added bonus to this proposal is the widespread explosions of Republican heads that would result. While I severely doubt it will ever happen, it's nice to dream.

[Janet]

Antonin
Scalia
School
Of
Law forced to change its name due to unfortunate acronym.

[The Man]

GOP Senator: 'Nobody Really Believes' That Next Prez Should Get SCOTUS Pick

Didn't anyone ever teach Sen. Flake that you're not supposed to tell the truth in the GOP? How does he ever expect to rise in the party if he keeps saying things like this?

If Clinton wins, the Dems retake the Senate, and the GOP tries to confirm Garland in the lame duck, Obama should tell them to go pound sand. I'm sure he will, but it's worth saying anyway.

[Jerome]

If Trump wins, 10-1 odds he appoints former Governor, Jesse "The Body" Ventura.