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Biden Aims to Appoint Liberal Judges After Trump's Conservative Push

NWRatCon said:
On an individual basis, I'd say yes, but as a strategy, it's just baseball. Everyone can see it.
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Obama shouldn't have let them get away with it in 2016. He had the Senate Republicans over a barrel and he didn't act on it... and what we've got now are the consequences of that.
 
Cordelier said:
Obama shouldn't have let them get away with it in 2016. He had the Senate Republicans over a barrel and he didn't act on it... and what we've got now are the consequences of that.
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I don't disagree, but a) what could he have done? b) when did it become apparent? And c) was there anything, say, a recession or the ACA, that was going on at the time that might have influenced his ability to to that?
 
NWRatCon said:
I don't disagree, but a) what could he have done? b) when did it become apparent? And c) was there anything, say, a recession or the ACA, that was going on at the time that might have influenced his ability to to that?
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Well, look at the situation.... Obama nominated Garland on Mar. 16. Fast forward to Sep. 29 and the Senate was leaving town to go on the campaign trail without having acted on the nomination. There were 54 Republicans - and 24 of those seats were up for re-election. Two of them - Coats (R-IN) & Vitter (R-LA) - were retiring, so that means 22 of the 54 Republican Senators were actively on the campaign trail.

Now in the very first pro forma sitting of the recess [presided over by Acting President pro tempore Cassidy (R-LA)] at 10:30 am on Oct. 3, Vice President Biden could have walked into the Senate chamber, claimed the gavel from Senator Cassidy, and immediately recognized Senator Reid's point of order that a quorum wasn't present. According to Senate Rule VI, that would have immediately resulted in a call of the roll to ascertain a quorum. Given that everyone was out of town, it's very unlikely that a quorum could have been mustered - even with the assistance of the Sergeant at Arms - and therefore the only order of business would have been to recess until the next pro forma session (Oct. 6) at which point the very first order of business would have been an automatic quorum call. Now the question here is whether the Republicans could have gotten 51 of their Senators to show up on Oct. 6 and vote "yea". I think that would have been a doubtful proposition.

First off, Collins and Murkowski were already on record as saying Garland should have gotten a vote. Plus, Murkowski was running for re-election... so she had an additional excuse to not make the trip from Alaska to DC, just to answer a roll call when her name came up. So that brings the available Republican number from 54 down to 52.

As mentioned above, 22 of the Republican incumbents were up for re-election... and most of them were in pretty safe seats. But not all of them.

Ayotte (R-NH) and Kirk (R-IL) actually ended up losing their re-election bids... but they wouldn't have known they were going to lose. From their perspective, they were in hard-fought fights... so I can't see either one of them being willing to lose time on the campaign trail to block Garland's nomination.

But there were also 3 Republican incumbents who ended up winning by less than 5% - Toomey (R-PA) won by 1.43%; Blunt (R-MO) won by 2.79%; and Johnson (R-WI) won by 3.36% - so they were in tough fights as well. You've got to wonder how much losing time on the campaign trail to make the trip to DC would have cost them at the polls.

So could the Republicans have mustered the 51 votes? Maybe if they really turned the screws. But odds are pretty good it would have cost them the majority.
 
NWRatCon said:
I don't disagree, but a) what could he have done? b) when did it become apparent? And c) was there anything, say, a recession or the ACA, that was going on at the time that might have influenced his ability to to that?
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From the Democratic perspective, in order to determine where the endzone was for getting Garland a recess appointment, they would have had to parse out the answers to two questions from the Supreme Court's decision in NLRB v. Canning, 573 US 513 (2014):

1) When during pro forma sessions of the Senate can it be considered in recess?

Key Passage from the decision:
“ …we conclude that we must give great weight to the Senate’s own determination of when it is and when it is not in session. But our deference to the Senate cannot be absolute. When the Senate is without the capacity to act, under its own rules, it is not in session even if it so declares. See Tr. of Oral Arg. 69 (acknowledgment by counsel for amici Senators that if the Senate had left the Capitol and “effectively given up . . . the business of legislating” then it might be in recess, even if it said it was not). In that circumstance, the Senate is not simply unlikely or unwilling to act upon nominations of the President. It is unable to do so. The purpose of the Clause is to ensure the continued functioning of the Federal Government while the Senate is unavailable. See supra, at 5–6. This purpose would count for little were we to treat the Senate as though it were in session even when it lacks the ability to provide its “advice and consent.” Art. II, §2, cl. 2. Accordingly, we conclude that when the Senate declares that it is in session and possesses the capacity, under its own rules, to conduct business, it is in session for purposes of the Clause.”

Answer:
The Senate is considered to be in session when it possesses the capacity to conduct business. However, when a quorum isn't present, it no longer has that capacity until such time as it can produce one.

2) How long must the Senate not have the capacity to do business before it can be considered to be "in recess" for appointment purposes?

Key Passage from the decision:
“... We therefore conclude, in light of historical practice, that a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause. We add the word “presumptively” to leave open the possibility that some very unusual circumstance—a national catastrophe, for instance, that renders the Senate unavailable but calls for an urgent response—could demand the exercise of the recess-appointment power during a shorter break. (It should go without saying—except that Justice Scalia compels us to say it—that political opposition in the Senate would not qualify as an unusual circumstance.)

In sum, we conclude that the phrase “the recess” applies to both intra-session and inter-session recesses. If a Senate recess is so short that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause. See Art. I, §5, cl. 4. And a recess lasting less than 10 days is presumptively too short as well.”

Answer:
The Senate is considered to be in a de facto recess if it does not have the capacity to conduct business for 10 calendar days.
 
So let's have a look at the scheduled pro forma sessions of the Senate between when the Senate left Washington (Sep. 29) and Election Day (Nov. 8):

DateTimePresiding OfficerDay Count
October 03​
1030​
Cassidy (R-LA)​
0​
October 06​
1030​
Cassidy (R-LA)​
3​
October 07​
1400​
Cruz (R-TX)​
4​
October 11​
0900​
Capito (R-WV)​
8​
October 13​
1400​
Heller (R-NV)​
10​
October 17​
1100​
Roberts (R-KS)​
14​
October 20​
1500​
Wicker (R-MS)​
17​
October 24​
1030​
Enzi (R-WY)​
21​
October 27​
1030​
Flake (R-AZ)​
24​
October 31​
1630​
Daines (R-MT)​
28​
November 3​
1400​
Inhofe (R-OK)​
31​
November 7​
1030​
Purdue (R-GA)​
35​

If the Republicans didn't fight the recess appointment effort, Obama could have given Garland his commission on October 13 (Day 10). If they did muster a quorum on October 6, the Democrats could have started the clock again the next day. If the Republicans wanted to play a high-risk strategy and hoped everyone showed up, they could have waited until Day 10 to muster their quorum.... but they still would have had to do so at least twice more before the election to block Garland's appointment.

What's more, if Obama ultimately did force a recess, he didn't have to just give Garland a recess appointment - he could have also given one to every other judicial nominee the Republicans were holding up. He could have held a mass swearing in the East Room on Oct. 13. In your face, Mitch.

And like I said before, even if the Republicans fought him tooth-and-nail.... what effect do you figure that would have had on the close Senate elections and even the Presidential race? You could have very well had a fired-up base electing Hillary as President with a Democratic Senate.
 
If there are any conservatives out there who don't like the idea that Biden will appoint liberal judges because they are liberal, that's fine. Really, we liberals didn't like many of the conservative judges that Trump appointed. I think it's fair to say you don't like it...but here's the things you don't get to complain about...

You don't get to complain that judges may use political ideology as a basis on making rulings: we've been seeing plenty of that coming from many conservative judges.

You don't get to complain about judicial activism; both Trump and McConnell are packing the courts in efforts to reverse previous rulings.

You don't get to complain if we control enough of Congress to push through a SC justice right before an election; you all did that to us TWICE in the past 8 years.

I don't mind it if you disagree on the politics of a judge or how you think they might make rulings. But you don't get to complain. Not after this. You all don't get to ride the high horse anymore because you rode until it collapsed. And then you shot it in the head. Whatever comes next...it was your doing that caused it.
 
Jason Warfield said:
If there are any conservatives out there who don't like the idea that Biden will appoint liberal judges because they are liberal, that's fine. Really, we liberals didn't like many of the conservative judges that Trump appointed. I think it's fair to say you don't like it...but here's the things you don't get to complain about...

You don't get to complain that judges may use political ideology as a basis on making rulings: we've been seeing plenty of that coming from many conservative judges.

You don't get to complain about judicial activism; both Trump and McConnell are packing the courts in efforts to reverse previous rulings.

You don't get to complain if we control enough of Congress to push through a SC justice right before an election; you all did that to us TWICE in the past 8 years.

I don't mind it if you disagree on the politics of a judge or how you think they might make rulings. But you don't get to complain. Not after this. You all don't get to ride the high horse anymore because you rode until it collapsed. And then you shot it in the head. Whatever comes next...it was your doing that caused it.
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That is incorrect. Conservative judges have never in history used political ideology in judicial rulings. That occurs only on the left.
 
Cordelier said:
Well, look at the situation.... Obama nominated Garland on Mar. 16. Fast forward to Sep. 29 and the Senate was leaving town to go on the campaign trail without having acted on the nomination. There were 54 Republicans - and 24 of those seats were up for re-election. Two of them - Coats (R-IN) & Vitter (R-LA) - were retiring, so that means 22 of the 54 Republican Senators were actively on the campaign trail.
...
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I admit when I first replied to this, I was thinking of the whole period, not specifically Garland. And, I VERY MUCH appreciate your lengthy and detailed analysis - I just can't quote it all. My only quibble, and this is a quibble, is "how long would Garland have served?" Without the approval of the Senate, his appointment would not have been lifetime (I believe). We would have been in the same boat, we would have just caught it at the next port. Is a recess appointment to the Court an option? (SCOTUSblog)
The presidential authority at issue in this possible scenario exists, according to Article II, when the Senate has gone into recess and the vacancy a president seeks to fill remains. Such an appointment requires no action at all by the Senate, but the appointee can only serve until the end of the following Senate session. The president (if still in office) can then try again during a new Senate session, by making a new nomination, and that must be reviewed by the Senate.
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Therein lies the problem. Garland on the SC even for that period of time, would have been amazing, but as Mr. Dennison notes
It is true that one of the Justices regarded as a giant on the Court’s history, William J. Brennan, Jr., actually began his lengthy career with just such a short-term appointment. The chances of that happening again today seem to have diminished markedly.
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I greatly endorse the theme of procedural hardball you are discussing. I believe that Democrats have too often tried to be correct, rather than creative. (There is, however, something to be said for honor.) Mitch McConnell has never suffered from an attack of scruples. But, unless the Georgia runoffs go the Democratic way, or some Republican Senators are willing to buck the Majority Leader, confirmations running through the Senate are going to be an iffy affair. So, recess appointments are going to become more frequent, and that is bad for government (as Trump's parade of incompetent - and frequently illegal - "acting" appointments have demonstrated). Government requires continuity, which is something Republicans have largely abandoned in their frenzy to dominate from the minority.
 
NWRatCon said:
I admit when I first replied to this, I was thinking of the whole period, not specifically Garland. And, I VERY MUCH appreciate your lengthy and detailed analysis - I just can't quote it all. My only quibble, and this is a quibble, is "how long would Garland have served?" Without the approval of the Senate, his appointment would not have been lifetime (I believe). We would have been in the same boat, we would have just caught it at the next port. Is a recess appointment to the Court an option? (SCOTUSblog)Therein lies the problem. Garland on the SC even for that period of time, would have been amazing, but as Mr. Dennison notes

I greatly endorse the theme of procedural hardball you are discussing. I believe that Democrats have too often tried to be correct, rather than creative. (There is, however, something to be said for honor.) Mitch McConnell has never suffered from an attack of scruples. But, unless the Georgia runoffs go the Democratic way, or some Republican Senators are willing to buck the Majority Leader, confirmations running through the Senate are going to be an iffy affair. So, recess appointments are going to become more frequent, and that is bad for government (as Trump's parade of incompetent - and frequently illegal - "acting" appointments have demonstrated). Government requires continuity, which is something Republicans have largely abandoned in their frenzy to dominate from the minority.
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I agree fully... any recess appointment, whether executive or judicial, only lasts until the end of the following Congressional session, so it's not a perfect solution... but I'd suggest it's a far better one than just turning the other cheek like President Obama did. Presidents Truman, Eisenhower and Kennedy all faced the same opposition from Southern Democrats to a lot of their judicial nominations as well and so they turned to recess appointments to fill the slots, and about 3/4 of their judicial recess appointments ended up getting confirmed permanently - that's how Thurgood Marshall ended up in the 2nd Circuit Court of Appeals before he was named Solicitor General and then eventually nominated for the Supreme Court by LBJ.

My point is that if they're going to play it hard, we need to play it harder. Play it like Bill Russell.... when he first broke into the NBA for the Celtics, he found himself getting pushed around under the net during rebounds - so his Coach, - the late great Red Auerbach - took him aside and said when they started getting overly physical, he needed to give them an elbow right across the chops - it was the only way he was going to earn respect in the league. And sure enough, it worked like a charm. Sometimes you've just got to throw an elbow.
 
EMNofSeattle said:
Good. Science is useless for most people and religion is very useful
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Science is only useless to idiotic Trump supporters who are so dumb they believe in a sky fairy. Idiotic Trump supporters.
 
Praxas said:
Science is only useless to idiotic Trump supporters who are so dumb they believe in a sky fairy. Idiotic Trump supporters.
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I was curious what you were responding to, so I made the mistake of "showing ignored content"... Boy there's a lot of whackadoodle that I've thankfully missed. You guys take the laboring oar on that shit. Thanks.
 
I just came across a picture or where Hunter Biden lives. Why can;t the press find him?Hunters house.jpgind him w=to ask him some questions?
 
Quag said:
Trump lost
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Hunters house is pretty cool, isn't it? I guess he couldn't afford anything better because his dad took all the China money he extorted.

Kinda nice Joe didn't have to kill people to make billions, eh? He could just use hos son as a buffer. Great prez you guys are gonna have.
 
Paradoxical said:
Hunters house is pretty cool, isn't it? I guess he couldn't afford anything better because his dad took all the China money he extorted.

Kinda nice Joe didn't have to kill people to make billions, eh? He could just use hos son as a buffer. Great prez you guys are gonna have.
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Trump lost, be is a loser and with every failed court case he loses again. No one loses as well as or as often a trump
 
This is good - that a lot of loony left opinions reversed by SCOTUS.
 
Quag said:
Trump lost, be is a loser and with every failed court case he loses again. No one loses as well as or as often a trump
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Biden is worse than a mafia boss.
 
Paradoxical said:
Hunters house is pretty cool, isn't it? I guess he couldn't afford anything better because his dad took all the China money he extorted.

Kinda nice Joe didn't have to kill people to make billions, eh? He could just use hos son as a buffer. Great prez you guys are gonna have.
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Who has the evidence of those CTs?
 
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