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Or Democrats could, "simply," not invent novel legal theories to prosecute their political enemies. What's Game Theory predict if one side defects while the one side does not?
... that the other side will eventually defect, like Democrats are doing now.
I called that any form of trust-based equilibrium was toast way back when Reps stole a Supreme Court seat. I cannot overemphasize what an effect that event had in re-framing what politics was about and what the Republicans were like for politically engaged Dems who weren't already maximally cynical.
At the time I hoped that Democrats would defect in ways that merely rebalanced the court to correct for that theft, and let things return to a stable equilibrium otherwise. But, no, touching the court was considered beyond the pale by the highest levels of the Democratic party, so instead it's the lower levels of the party defecting in various corners in a decentralized way.
New hope is 'defeating' Trump would be enough to pacify those elements and get back to equilibrium. Not holding my breath though.
Stole from whom, exactly? Who did that seat belong to? Because from my recollection, the Senate, that august body of 100, decided through its rules that they didn't like the nominee enough to even bother voting on him. And it is the Senate that gets to decide who sits on the court. If the seat is said to belong to anyone, or any group, it surely belongs to the Senate, and they did with their property exactly what they wanted done with it.
The president gets to nominate SC justices. Customarily (see @guesswho's remark about trust), the Senate almost always accepts them, even when the president is from an opposing party. It has rejected them on occasion (or nominees have been withdrawn when it was clear they were headed for rejection). Garland was neither rejected nor withdraw. McConnell simply refused to hold a hearing or consider the nomination.
Yes, in theory, the Senate can do whatever it wants. In reality, what McConnell did was extremely unusual, compounded by the handling of ACB's nomination making it clear that his arguments with respect to Garland were unambiguously in bad faith. If you keep mashing the defect button, don't be surprised when your opposition starts Noticing.
And nobody is arguing that this was disrupted.
It was perfectly usual, in that it was the usual escalation that can be traced back to Bork, at the very least. This was thirty years of chickens coming home to roost, and was perfectly in line with previous escalations from both sides.
YES! THAT IS EXACTLY WHAT HAPPENED! Except it was the Republicans who finally Noticed, and truly defected rather than be played for chumps.
You still haven't answered the question. To whom does the stolen seat belong? From my perspective, it belongs to Gorsuch, because he's the one who the Senate confirmed.
All of these problems are directly downstream from 17A, by the way.
I am. I'm arguing it. Obama nominated a candidate and McConnell sat on it for a year.
Bork always gets wheeled out as the excuse, but it's total bullshit. Bork was rejected (unusual but far from unprecedented) and replaced with... another Reagan nominee. Who was confirmed. In other words, what we'd expect to happen. If McConnell had specific issues with Garland as a nominee, he should have held a hearing and voiced them. Of course, he didn't, because he didn't have a problem with Merrick Garland. He openly declared he wasn't going to consider any nominee.
The seat doesn't 'belong' to anyone because it's not a piece of property, but by long-standing American political norms it was Obama's prerogative to fill the seat. Word games and playing dumb about idiomatic use of the word 'stole' can't duck the GOP's flagrant breach of trust.
That would imply that the Republicans weren't defecting constantly, when in fact that was pretty the standard playbook since the end of the cold war.
So what?. Obama nominated someone and sent the nominee to the Senate. The Senate didn't confirm the nominee, and made it clear he wouldn't be confirmed at all. It was Obama's prerogative to nominate someone, and he could have withdrawn the nomination and tried someone else, but chose not to in order to make people like you think that it was somehow stolen.
It doesn't belong to anyone, and it was not stolen. The President nominates, the Senate fills. There's no reason why the Senate must consider any nominee, and may reject or refuse to consider any of them as they please. This is called the separation of powers, and while it hasn't had a good time of things, there are still some places where it is relevant.
Your political norms are just that, norms, not law, not even rules, and certainly not constitutional directive. They were broken when Bork was rejected on ideological grounds, rather than competency grounds. That was the first major escalation, and it has gone back and forth since then. Other norms were violated and are no longer normal. Of course the latest round is more significant than the original offense, that's why it's escalating.
Better than implying it's only Republicans defecting, when it is clearly tit for tat. I'd be much more sympathetic to the Democrats if it wasn't their party who reduced the Senate threshold for nomination in order to appoint dozens of Obama judges, but I understand they did that in order to get around disagreements from the minority who would not confirm those judges. To get hoisted by your own petard is shameful enough, there's no need for further griping.
To deny that denying Obama a replacement for RBG was not a major escalation by the GOP is to deny obvious reality.
“But they started it with Bork” doesn’t mean McConnell didn’t choose a massive escalation some decades later to change the balance of justices, which the former case did not do and was never intended to.
And I say that as someone quite happy with a strong conservative majority.
Why was Obama entitled to a replacement for RBG? What replacements are Conservatives entitled to, and how is this entitlement adjudicated or enforced?
No such entitlement exists, has ever existed, or ever will exist. There is no legal requirement that the Supreme Court be "balanced", or that either side receives any representation in it beyond what they can secure through winning elections. Progressives abused the Court for decades, claiming that the "Living Constitution" and its emanations and penumbras allowed them to arbitrarily shape the nation's laws. Progressives trampled Conservatives' constitutional and human rights with abandon, and continue to do so to this day.
There has never been a point in living memory when the Supreme Court was not an ideological weapon, only points when that weapon was wielded according to the preferences of partisans of one stripe or the other. Well, live by the sword, die by the sword.
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