Sunday, February 14, 2016

The GOP Can Block Obama's Nominee but Obama Still Wins

Here''s the truth: the Roberts Court is over. He remains the Chief Justice of the Supreme Court but his ideologically conservative court is over.

Republicans can make good on their promise to reject any nominee the President puts forward. But the GOP doesn't get the Roberts Court back by doing that.

What we now have with a 4-4 Court is that close, ideological decisions will no longer bet made by the Supreme Court but will go back to lower court rulings.

"But the GOP might soon reconsider if they see the implications of refusing to allow Obama to replace Scalia: A divided court leaves lower court rulings in place. And the lower courts are blue. Nine of the 13 U.S. Courts of Appeals have a majority of Democratic appointees. That means liberal rulings conservatives were hoping the Supreme Court would overturn remain law. So if Scalia had cast the deciding vote on a case before he died, but the court rehears it and divides 4 to 4, that would leave the lower court decision in place. That’s what would happen with a proposal to apportion Congress in an entirely new way that would heavily favor Republican districts, which was argued recently. The lower court (in this case a district court which went directly to the Supreme Court for technical reasons) tossed the plan out; conservatives had been hoping the justices would restore it."

"The situation is not always good for liberals. Abortion, in a case that has not yet been argued, was subjected to the most onerous restrictions by the normally conservative Fifth Circuit. If the court deadlocks, most of the abortion clinics in Texas would close. On immigration, the court had announced it would take up another case from the conservative Fifth Circuit over whether Obama has the power to stop breaking up families by ordering the government not to deport millions of undocumented immigrants; the lower court ruling blocked Obama’s executive order, so a tie wouldn’t change that."

"Most of the country, though, is governed by appeals courts dominated by Democrats. The suit against Obama’s environmental initiative, which the Supreme Court just stayed, came from the liberal D.C. Circuit, which had unanimously refused to grant the stay. Now the Obama administration can simply have the Environmental Protection Agency come up with a slightly different new plan and run to the liberal D.C. courts to bless it and refuse to stay it. It’s unlikely the now-divided Supreme Court would come up with a majority to stay the new rules: The vote to stay the old ones was (naturally) 5 to 4."

"That’s why the effect of an equally divided court has enormous potential to strengthen Obama’s hand in dealing with the Republican Senate in picking a replacement: Even if the GOP blocks his nominee, the policy outcomes would be very similar to what they’d be if the court had a liberal majority. The institutional cues for Obama are completely different than for the court. The Constitution clearly assigns the task of nominating judges to the president — with the Senate’s advice and consent, to be sure, but for most of American history, presidents got a fair amount of deference. Acting politically is consistent with occupying elected office, so that’s what Obama should do. Political considerations, after all, are what motivate Republicans to pledge to block nominees before any have been announced. This is the moment for Obama to assert his political prerogatives as firmly as his opponents always seem to do."

Look, you'd obviously rather have Obama get another liberal on the Court. But failing that, this is not a terrible position for him to be in.

You don't wish anyone dead, but let's just say this is coming at a great time for liberals, just after the SJC had hit Obama's new climate rules.

Obama, I agree should not put a compromise pick for the GOP. Why as they've already vowed preemptively to vote down anyone he nominates?

When his nominee is not voted on this just makes it all the clearer to Democrats why this is about winning the election not about aspirations.

In the meantime, a 4-4 tie works just fine. It's better than the 5-4 conservative Roberts Court. The GOP can threaten not to vote for Obama's nominees all it wants. But the Roberts' Court is over in any case.

UPDATE: This piece also hits on this point: even without replacement, this pushes Court to the Left.


  1. Mike, I called this one (though it was pretty obvioius):

  2. O/T: I'd love to see Alex Jones be the GOP debate moderator. Maybe him and David Icke.

    "Mr. Bush, why did your brother order the jet flown into the pentagon as well as the WTC?"

    "Mr. Rubio, what is your position on the alien bodies hidden at area 51. Does the public have a right to have them put on dispay?"

    "Mr. Trump, what are you going to do about the chem-trails?"

    Lol!... probably the GOP audience would love it too. Something the whole country could enjoy.

    1. BTW, I saw my half brother again at a recent family gathering. He managed to keep away from politics as a topic, but he couldn't resist with the crazy stuff. I overheard him telling my half sister about the alien civilization "they" found on the dark side of the moon. NOBODY else in the room wanted in on that conversation (my poor sis!). My other brother tried to surreptitiously get it on video, or at least audio, but he failed.

    2. ... I give it a 85% chance my crazy neighbor now believes Obama had Scalia killed. He listens to Alex Jones, and I think he pretty much buys everything he says.

  3. Some new bumper sticker ideas:

    Bushes Lie, People Die!
    Trump 2016

    W Defense = Establishment Lies
    Trump 2016

    Rubio & Bush defend W
    Rubio & Bush = Establishment Liars
    W did NOT keep us safe
    W lied about WMD
    W got us in a STUPID war
    W destabilized the ME
    W fucked up Katrina & economy
    There's NO defense for that!
    Trump 2016

    Man, what a topsy-turvy election this is!

    1. I gotta admit, it borders on sexual arousal for me to contemplate that the GOP nominee this year could take that position. I'd still never vote for him (in the general!), but I'd be pleased as punch to see the GOP platform accommodate their nominee on these issues. It'd be basically shoving cynical establishment faces in a big steaming turd. I'd love to see Cheney and Trump get into it, and Trump humiliate him.

      I'd love to see the establishment so upset with a Trump nominee: so pissed off that he pooped on their legacy and smashed their sacred idols that masses of them revolt and actively and publicly undermine Trump once he's at the head of the ticket.

      I don't want there to be any safe place for "true conservatives" to hide: make 'em pick sides. Make 'em eat turds no matter which way they turn.

    2. That's why I'm pulling for Jeb now. I want to see Jeb as #2! I want to see this be an ugly and wingnut soul crushing debate about W's legacy. I want to see painful cognitive dissonance on the right, and TONS of acrimony and vicious slander.

      Here's some imagined dialog from my next fantasy debate:

      "You're wife's a Euro-trash gutter skank who gives $2 BJs in the alley."

      "You're wife's an an ugly midget beaner, and so are your kids and grandkids. I'll have 'em deported for crimes against the gene pool."

  4. Trump has just totally destroyed this party from within-it's been great to watch. But you're right, if he wins, then they will have nominated someone who is close to a 9/11 Truther

    1. I like my long list above, but I think I need to change it slightly:

      Rubio & Bush defend W
      W is the establishment
      W did NOT keep us safe on 9/11
      W lied about WMD
      W lied us into the Iraq War
      W destabilized the whole Middle East
      W has the blood of brave Americans on his hands
      W fucked up our economy
      There's NO defense for W!
      Trump 2016

      (I removed Katrina, because I'm guessing Republicans don't give a crap about that)

    2. Mike, regarding conspiracy theories and our brains playing tricks on us, this episode of This America Life is good, especially the 1st story:

      A delusional man (convinced he was some sort of secret agent, perhaps even a cyborg)is terrified of "them" coming to get him, possible even snipers shooting him. In fact he thinks he's an Obama replacement: groomed to take Obama's role should he be needed to do so.

      He KNOWS that he's manic and delusional at times (from past instances), so it's fascinating to hear him describe how these delusions got the better of him once again.

      He managed to get himself to a hospital, and told them he was "manic" but ultimately he DID end up being tasered, shot in the chest, and handcuffed. His paranoid delusional fantasies came true!

      It's also a comment relating to the prevalence of guns in our society.

      This can be tied (IMO) to Jason Smith's recent series of posts (which riff off of some old Nick Rowe posts) about how humans often end up (essentially randomly) "exploring the state space" available to them. In this case, more guns in hospitals = more possible states in which guns get used = more shooting deaths in hospitals. Not a profound thought, but it's interesting that this kind of thing might be capable of being modeled mathematically. Of course that extends to guns in society as well, I'd think.

      Jason once made a table like this in answering one of my questions:

      molecules: no free will

      humans: effective (as in effective field theory) free will

      society: no free will

      Of course that's his speculation, not a definitive fact. But I like it!

      I think it makes a good gun control argument, so naturally people will hate the concept. Increase the number of possible states in which people die or get maimed from gun play, and the probability of that happening will rise: an inescapable law of statistical mechanics. Similar to how a drop of dye in a glass of water will diffuse to fill to whole glass. The molecules don't WANT to do that, but there's just a whole lot more states where they're evenly mixed than in any other arrangement of densities.

    3. Basically, when he's delusional, his brain is still functioning, and so is his reason, but the possibility of coincidences seem to be suppressed. It's as if he's got his ears on high alert for the sound of a lion in the tall grass, so he's not particularly worried about false alarms: anything sounding remotely like that lion is going to have him reacting. The cost of processing false alarms appears insignificant.

      So an odd turn of phrase with a relative over the phone sets him off trying to explain it so he hangs up. In particular he tells his brother he's having a panic attack (but not delusions), so his brother advises him to breath deeply, lie down and put a cool damp cloth on his head: his reason leads him to think this is because his brother knows his circuits are overheating!...

  5. So say we could predict the # of shootings just based on gun prevalence. And people accepted that. Then we could at least make a smart trade! Oh, you think we should lower gun controls by X, Y and Z? Then expect to pay for that with S% higher unwanted shootings. If you want to try to bring it down from S% to s% then this is how much resources will be needed for "training" and screening of gun purchases.

    Really, I'm OK with the "mental health" outlook on gun ownership. Why? Because I think if delusions were properly diagnosed, then we'd take them away from most of the wingnuts.

    But better still is to turn down the diffusion of them.

  6. Another interesting Coulter tweet:

    ""Racist": The highest tribute a liberal can pay to a conservative. (That word dominated tweets about Scalia)."

    I'm telling you Mike... there could be white sheets at the convention this year! (I pray to Jesus it happens) :D

    Go Trump! Go Trump!