What's Wrong With Advice And Consent?

By Big Tent Democrat, Section Supreme Court
Posted on Sat Aug 07, 2010 at 02:13:10 PM EST
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I guess I understand why some Dem bloggers are upset now that the Supreme Court confirmation process has become, horrors, "partisan." But I just am not one of them. Kevin Drum writes:

Elena Kagan was only barely confirmed to the Supreme Court yesterday, continuing a recent trend of court picks becoming ever more partisan. Jon Chait comments: [. . .] Th[is] trend has many legal observers lamenting a Supreme Court confirmation process on a steady trajectory toward complete polarization and a seemingly inevitable filibuster."

So what happens if this becomes institutionalized? It means that no president with a Senate controlled by the opposite party will ever be able to place someone on the Supreme Court. [. . .P]erhaps some change is in order?

Why exactly is this a bad thing? Imagine a system where Scalia and Thomas were not on the Court? Imagine a system where the electorate realized that the Senate had to agree with the President on who should sit on the Supreme Court? Oh wait, that is how the Founders designed it:

[The President] . . . by and with the Advice and Consent of the Senate, shall appoint [. . .] Judges of the supreme Court[.]

What exactly is wrong with that system? Sure, I wish Obama would get a rubberstamp for his judicial nominees. But I sure would not want Republican Presidents to get them. That was sort of the point during the Bush Administration.

Speaking for me only

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What's Wrong With Advice And Consent? | 22 comments (22 topical)

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Perhaps if Mr. Drum were an attorney? (none / 0) (#1)
by oculus on Sat Aug 07, 2010 at 02:19:38 PM EST

His degree is in journalism, per Wiki, and he was in marketing at one time.

: That may be true, (none / 0) (#2)
by JamesTX on Sat Aug 07, 2010 at 03:41:13 PM EST

but understanding the law, our legal system, and our government has become much too "professionalized." The law and what the legal system does matters greatly to most of us, and we are ultimately supposed to be in control of it. That was the point of it all. Therefore, we all should be able to comprehend what is happening to us and what is happening to our government. We may use the wrong terms, and we may have inaccurate interpretations of legal concepts, but that should be due to our own ignorance and not some notion that it is too complex and too technical for the layman to comprehend. If it is, then we need to simplify it. If we are governed by the people, then it makes no sense to hold that the law is too complicated for the people to understand. Those two points are contradictory.

true enough BTD, (none / 0) (#3)
by cpinva on Sat Aug 07, 2010 at 04:08:46 PM EST

then again, they also designed a system (the senate) where a state such as wyoming, having a population that would fit in brooklyn, with room to spare, is on equal footing with the state of ny.

: and without the Connecticut Compromise (none / 0) (#5)
by ding7777 on Sat Aug 07, 2010 at 04:40:19 PM EST

there probably would not have been a Union

: That's the way it is supposed to work (none / 0) (#14)
by jimakaPPJ on Sun Aug 08, 2010 at 07:53:43 AM EST

We are not a democracy.
We are a Constitutional Republic with democratic institutions.
Or would you prefer rule of the Mob?
Worked well in France....

Maybe Drum is unhappy about (none / 0) (#6)
by cenobite on Sat Aug 07, 2010 at 04:48:07 PM EST

This.

Glenn Greenwald points out that supposed easy-peasy confirmation moderate Kagan got fewer votes than well known extremist Sonia Sotomayor.

That kind of invalidates the theories about moderates being easier to confirm than liberals that people like Kevin Drum and Ezra Klein like very much.

Advise & Consent & the Fillibuster (none / 0) (#7)
by ScottW714 on Sat Aug 07, 2010 at 05:29:09 PM EST

Let's say it's 2013 and Obama is still the POTUS and the republicans hold the majority in the Senate, then 77 year old Scalia has a heart attack and can no longer sit on the court.

Who exactly will they 'advice and consent' to the court. It's one thing replacing a liberal with a liberal when liberals hold the majority, but replacing a conservative with even a moderate is going cause a meltdown with a conservative majority in the Senate.

What happens if Obama nominates a liberal ? I can easily see the court a member short for three years. Then what, conservatives get the Presidency, does the nomination pass to the new President ?

My point is, advise and consent is pretty damn vague and in the past it's been viewed as approve if qualified. If the filibuster is any indication of the future Senate, advise and consent will mean vote 'no' to everything Obama.

So spare me the 'founders' slogan, anyone who can read knows exactly how much the right truly cares about the wishes of the founders.

Recess appointments (none / 0) (#9)
by andgarden on Sat Aug 07, 2010 at 06:25:11 PM EST

are possible. You'd get potentially temporary justices, but it would work.


The most recent by President Eisenhower: (5.00 / 1) (#10)
by KeysDan on Sat Aug 07, 2010 at 06:42:55 PM EST

Earl Warren, William Brennan and Potter Stewart. All three were subsequently confirmed by the senate.


Outside of your opinion (none / 0) (#15)
by jimakaPPJ on Sun Aug 08, 2010 at 08:03:26 AM EST

What proof do you have?

It was the Left in the 60's and 70's that demonstrated and marched and in some cases rioted, seized buildings, etc. You might consider that when you opine over polarization.


'Em Mexican muslims is (none / 0) (#16)
by jondee on Sun Aug 08, 2010 at 10:56:31 AM EST

just gonna come floodin' in..

I hope they keep it up: the loonier the Teabaggers get, the more marginalized they make themselves and the more credibility they drain from the Right in general. And of course, the more chance there is of the Right splintering ireparably. In the meantime, let them publicly wallow to their heart's content in their White Patriot paranoia. The more the better.

As long as no The 100 Enemies of America inspired crackpots go on any public shooting sprees, which lately always seems to be a distinct possibility..


Tea Baggers? (none / 0) (#17)
by jimakaPPJ on Sun Aug 08, 2010 at 11:39:24 AM EST

Where did you find one?

The last one I knew about retired and moved to FL when Lipton Tea sold out to Walmart and was moved to China!

As for Glen Beck.... The No. 1 best selling author is hiding under your bed!

Honesty. Go look.


Yeah he's (none / 0) (#18)
by jondee on Sun Aug 08, 2010 at 11:50:40 AM EST

a literary genius and thinker right up there with Joyce and Faulkner; when he's not being a walking embarrassment to anyone whose ever strung two cogent thoughts together -- and even to some on the Right.

As I say, by all means I hope you folks keep it up. Please.


and TV star on the world's (none / 0) (#19)
by jimakaPPJ on Sun Aug 08, 2010 at 12:10:10 PM EST

largest cable news network and host on the third most listened to radio show in the world...

Yep. The guy knows nothing...................

In the meantime the Left is reaping the backlash of years of its over the top actions.

So quit whining already!


he's the talking bass (none / 0) (#20)
by jondee on Sun Aug 08, 2010 at 12:19:37 PM EST

and pet rock of political thinkers.

That you're not embarrassed and seemingly proud of the fact is another good sign.

In the meantime, keep flailing around in that imaginary realm where the Birchers and White Citizens Party finally gets their re-venge..

If we caint win, we'll just dumb everyone down to the point at which an army of nitwits dressed in bathrobes and carrying flash lights can take over things in this country. As long as Daniel Berrigan and Jane Fonda get their pay-back..


Yeah (none / 0) (#21)
by squeaky on Sun Aug 08, 2010 at 12:36:07 PM EST

OBL is a best seller amongst his crowd, as is Castro.

Also, if I remember correctly, Son of Sam was a best seller too... and American Idol....

Just because many Americans like to see the circus, and fascinatingly gawk at psychos doesn't make your Prophet aka Beck, any better than a sword swallower.


What's even more laugable (none / 0) (#22)
by jondee on Sun Aug 08, 2010 at 12:43:44 PM EST

is that Beck cant even concoct that swill on his own: he's got his own little "with help from.." committee of six or eight people to help him formulate and put down in writing all those penetrating insights.


: You need to listen to Air America (none / 0) (#23)
by jimakaPPJ on Sun Aug 08, 2010 at 07:34:51 PM EST

it has a quieting effect on the nerves of good Lefties...

you are now dealing with a major (none / 0) (#12)
by cpinva on Sat Aug 07, 2010 at 10:54:40 PM EST

political party who's general membership, and a goodly number of its leaders, appear to have, quite literally, gone off the deep end. regardless of the cause, the result is a party who's sole reason for existing is to block any attempt to govern by the president and a democratic congress.

why the obama team fails to recognize this eludes thinking people. if he were bill or hillary clinton, i would assume there was a method behind the seeming obliviousness. obama is no clinton, either one. with that in mind, a reasonable person must reasonably conclude that obama and his team are just not very street savvy, and they're setting him up to be a one-termer.

prove me wrong.

That was a great (none / 0) (#13)
by MKS on Sat Aug 07, 2010 at 11:16:05 PM EST

movie wih Henry Fonda.....Or was that Advise and Consent?

Ruth Bader Ginsburg disagrees: (none / 0) (#24)
by oculus on Mon Aug 09, 2010 at 11:32:49 PM EST

Huff Post

: Well (none / 0) (#25)
by squeaky on Mon Aug 09, 2010 at 11:47:57 PM EST

Votes on the last four nominees have been much closer and acrimonious, a departure from the long-standing tradition of giving the president wide deference on appointees.
Acrimonious is the point, not the thoroughness of advise and consent.
IOW, if the congress were more bi-partisan, as she prefers, the advice and consent can be thorough, but not partisan. The partisan element is not about finding out whether or not a candidate has the chops to be a good SC appointee, but a sports event centered around getting a nominee to look bad.