Supreme Court Justices’ Loyalty to the President

That is a recent paper by Lee Epstein and Eric A. Posner, and here is the abstract:

A statistical analysis of voting by Supreme Court justices from 1937-2014 provides evidence of a “loyalty effect” — justices more frequently vote for the government when the president who appointed them is in office than when subsequent presidents lead the government. This effect exists even when subsequent presidents are of the same party as the justices in question. However, the loyalty effect is much stronger for Democratic justices than for Republican justices. This may be because Republican presidents are more ideologically committed than Democratic justices are, leaving less room for demonstrations of loyalty.

You can read it here.

Comments

The framing of this as a "loyalty effect" makes it sound like corruption. But there is no need for such an interpretation.

Presidents appoint justices they agree with, therefore the justices are likely to agree with them more than anyone else. Even presidents of the same party are not going to agree on everything, so it's not surprising that this effect still holds up when comparing presidents of the same party.

+1

@dan111 is a better person than I. He didn't say it so I will DUH!

Hmm yeah I just repeated you below. With more words.

/// "The framing of this as a “loyalty effect” makes it sound like corruption." ///

...well, depends on one's definition of judicial corruption.

Epstein/Posner clearly state and accept that: "Numerous studies have established that Supreme Court justices engage in ideological voting"

In Constitutional principle, SCOTUS Justices are supposed to act/vote outside of politics and ideology, as neutral arbiters of Constitutional/Federal law. But "ideological voting" is the opposite of that -- it's politics. Therefore, Justices who act/vote "ideologically" are legally corrupt -- dishonest to their formal oath of office and to their employers/principals (US citizens).

Epstein/Posner are certainly correct that SCOTUS Justices are essentially "politicians" in daily practice, just like their colleagues across the street in Congress... and the President. Issues of loyalty are merely standard manifestations of the political class.

But clearly justices need to have a judicial philosophy that guides their work. It's not sufficient just to say "be a neutral arbiter of the law" without spelling out what principles are involved, how one is supposed to read the law, what the role of a justice is, etc. And ultimately I think such a judicial philosophy ends up being an ideology. It's unavoidable.

We want justices to operate based on higher ideals, rather than crass political calculation. But the problem is, there is currently no agreement between left and right on what these higher principles are. Which means that each side looks at the other side's justices as crass political operators.

I'm not a relativist on this (I think my side is correct about constitutional principles and the other side is being crassly political). But pragmatically, that doesn't matter, and what matters is the fact that there is no consensus. The Constitution only acts as a safeguard of higher ideals and preserver of institutions when there is a consensus on what it means. And absent that, it isn't protecting us from much. The American system has resulted in a huge amount of power being given to whichever side is able to get a majority on a nine member lifetime appointed body. Which is quite anti-democratic, really.

/// " ...how one is supposed to read the law.." ///

well, how is the average American supposed to read the law ??

"Law" is government commands to citizens. Citizens require no "judicial philosophy" to deal with it... neither should SCOTUS Justices.

"Judicial Philosophy" is just another term for "ideology".

SCOTUS Justices are supposed to be servants/agents/representatives of the American people. The Constitution spells out their basics.

“Judicial Philosophy” is just another term for “ideology”.

Not quite. In the hands of someone of integrity, 'judicial philosophy' incorporates an understanding of roles and procedure. What Bork called 'moral abstention' is an understanding of the role of a judge in a working political society. It the hands of someone without integrity, judicial philosophy is a set of intellectual improvisations which justify imposition of policy outcomes. Both incorporate a political theory, but the latter puts a mask over its essence, which is that the bar, informed by academe, should have plenary discretion over policy.

"SCOTUS Justices are supposed to be servants/agents/representatives of the American people. The Constitution spells out their basics"

In other words, if Congress passes a law, say Obamacare, it's constitutional, because it was the best possible expression of what We the People want?

After all, Trump and Republicans have run against Obama and Obamacare promising more health care, more choices, less restrictions, and less cost in premiums, co-pays, deductibles, and taxes.

Plus they have run on the platform of government not being the solution except by government putting money in your pockets and going back to government giving you free stuff taken from other people, like profits, wealth, land, oil, and other spoils of war. Trump is merely the clearest speaker on these promises. He has stated the oil in Iraq belongs to US oil companies. He has fought to take the earnings of workers, students, lenders in his personal business dealings and promises he will do the same as president.

He was elected along with Republicans based on the rules to do what he promised, and Republicans and conservatives almost completely support him and argue that the Constitution and laws should not stand in his way.

Only McCain and Graham and Collins seem to be able to defy the Republican Party consistently in thE view that the Constitution and laws constrain the will of the people elected by voters.

'However, the loyalty effect is much stronger for Democratic justices than for Republican justices.'

Or Warren just utterly destroys the statistical model.

Several other Republican appointees also ended up being quite liberal, including Blackmun, Stevens, and Souter.

I'm not aware of any examples in the other direction (though that may be due to ignorance).

Precisely my thought. I'll see your justices and raise you a Sandra Day O'Connor and Anthony Kennedy.

BTW - "This may be because Republican presidents are more ideologically committed than Democratic justices are, leaving less room for demonstrations of loyalty." Yeah right.

I think Tyler needs a new category for Opinions Looking for a Confirming Study.

In fairness, the only way this paper gets published (and gets recommended by people like Tyler) is if it suggests that Republicans are the bad guys.

If Dem judges are found to be always be nakedly partisan instead of doing their jobs, then clearly the only explanation is that Republicans are so ideologically extreme that one couldn't possibly regularly agree with them.

Those of you who've looked at the paper: did they offer any evidence for "This may be because ..."?

I assumed (mistakenly) that the paper was not available to non-subscribers. After a quick scan, I think this was another attempt to measure the unmeasurable. I think the right was rather slow to understand that the left saw the SC as a key instrument to effect the changes they desired. Easier to convince five individuals than the masses of voters. Reagan may have been the first President to realize this. The two Bushes were only vaguely ideological (e.g., see the failed Miers candidacy), so we really have only one Republican president who was trying to influence the direction of the court.

Sure - but Warren is a true stand out. Who, if he hadn`t been appointed by a Republican, would probably be considered, using the terminology favored by so many commenters here, a hard leftist that could only have been picked by a virtue signalling status seeker.

Generally, people who assume great responsibility turn out to be more `liberal` - probably the finest example of this was Surgeon General Koop, who placed his job above his beliefs. Several examples -

Though Koop was opposed to abortion on personal and religious grounds, he declined to state that abortion procedures performed by qualified medical professionals posed a substantial health risk to the women whose pregnancies were being terminated, despite political pressure to endorse such a position.

-------------------------------------------------

In his 1988 Report of the Surgeon General, it was reported that nicotine has an addictiveness similar to that of heroin or cocaine. Koop's report was somewhat unexpected, especially by those who expected him to maintain the status quo in regard to his office's position on tobacco products.

--------------------------------------------------

Koop was Surgeon General when public health authorities first began to take notice of AIDS.[25] For his first four years in office, Koop, the nation's top health officer, was prevented from addressing this health crisis, for reasons he insisted were never fully clear to him but that were no doubt political.[26] Koop wrote the official U.S. policy on the disease, and in 1988 he took unprecedented action in mailing AIDS information to every U.S. household.[27] Gay activists and their supporters were unhappy with the way in which he targeted gay sex and the risk of infection through anal sexual intercourse as primary vectors of the disease, but Koop was unapologetic, claiming such activities entail risks several orders of magnitude greater than other means of transmission. Religious activists, upset over the pamphlet's frank discussion of sexual practices and advocacy of condom use, called for Koop's resignation.[28] Koop also infuriated some former supporters by advocating sex education in schools, possibly as early as the third grade, including later instruction regarding the proper use of condoms to combat the spread of AIDS.

https://en.wikipedia.org/wiki/C._Everett_Koop#Legacy

However, it seems as if subsequent Republican administrations have discovered a way to keep effective people like Koop out of positions of power if they are not clearly ideologically committed. After all, look at how often Koop betrayed the position of Surgeon General.

Once again you amaze us with your ability to take any starting point and then head off into the weeds in order to confirm your bias. Congrats!.

I’m not aware of any examples in the other direction (though that may be due to ignorance).

Byron White was the last Democratic appointee disinclined to turn the keys over to the her-de-har public interest bar. White, Rehnquist, Scalia, Thomas, Roberts, and Alito are the only justices appointed in the last 60 years who were not unfit for office.

Warren, William Brennan, John Paul Stevens, David Souter. All with (dramatically) different voting records than their nominator expected, I imagine. Eisenhower even said as much. By its nature this is a study with a small sample, so that's a lot.

Read John Dean's memoir of his time in the Nixon Administration. It has a discussion of the process by which Lewis Powell and William Rehnquist ended up on the court, and that (along with other sources), should tell you how Warren Burger and Harry Blackmun ended up on the court. When Hugo Black died, Mitchell forwards three names to the White House for the President's perusal and John Ehrlichman has Dean interview them. Two of the three (a member of Congress from Virginia and a trial lawyer in Arkansas) had never held any kind of judicial position. The member of Congress had baggage (segregationist votes on legislation) of the sort which had helped kill Nixon's nomination of Clement Haynesworth to the Supreme Court two years previous. Of the Arkansas lawyer, Dean tells Ehrlichman, "He knows little constitutional law". It's almost as if Mitchell opened a bar directory and picked names at random. Their third selection was a state appellate judge from California who was 55 years old and had been on the bench for 24 years. (Dean's description: "damn bright and knows her mind"). The ABA committee arbitrarily vetoed her selection and Nixon and his crew just rolled over. (Eisenhower had conceded this franchise to the ABA and it was decades before his successors had the sense to tell them to piss off). The ABA gave its approval of Lewis Powell, who, again, had never spent a day on the bench. Neither had William Rehnquist, who was nominated for the other seat. Rehnquist was one of Mitchell's deputies, one of Barry Goldwater's camarilla (as was Richard Kleindienst; John Dean was a remora in this school). Nixon disliked Rehnquist personally.

Blackmun was an old buddy of Warren Burger, and nominated consequent to Burger's recommendation. R.M. Kaus, whose father had been on the California Supreme Court and who'd know some of the clerks on the U.S. Supreme Court, had a concise discription of Burger ("stupid...supervising the deployment of plastic plants in the court building while his colleagues avoided him in the hallways").

Ron Nessen's memoir of the Ford Administration mentions Stevens only in passing. There wasn't much effort or controversy there. Stevens was vetted by the Attorney-General, a quondam law school dean (and registered Democrat) named Edward Levi. Ford subcontracted the choice to the establishment bar. In retrospect, the result was unsurprising. Within two years, Stevens had signed on to an egregious minority opinion in which 4 members of the court proclaimed that women had a constitutional right to a Medicaid-funded abortion (the four criminals in question were Wm. Brennan, Thurgood Marshall, Harry Blackmun, and Stevens).

Reagan put Sandra Day O'Connor (she of the five-part balancing test) on the court because he'd made a dopey campaign promise to put a broad in there and she was touted by Barry Goldwater. SoCons familiar with her record in the Arizona legislature complained; it turns out they knew what they were talking about.

In truth, prior to 1986, Republican administrations never made a serious effort to locate and appoint to the court smart judges who would shut down the Court's asinine adventures in social policy. When they did, they ended up with the Bork nomination battle, an episode which demonstrated that the lawyer left had control of the Democratic congressional caucus and had not an ounce of decency.

Bork was a complete crackpot.

Actually, Bork's background as an appellate judge, law professor, solicitor-general, and working attorney was as variegated as any who have served on the court. He was an eminently sensible critic of what's left of constitutional law. He looks like a crackpot to you because nothing of value ever occurs between your ears.

He fired Archibald Cox only after Nixon promised him a seat on SCOTUS.

How big is the party difference? Republican appointees are somewhat (only somewhat, or course) limited by things like "what the constitution actually says", whereas democrats can appoint justices committed to the revolution. Of course some Eisenhower, was really more in sympathy with the revolution than Truman and who controlled the senate during the appointment matters a lot as well.

Another possibility is that the Justices, by definition have entered into ruling class and would like to stay in the good graces of their social peers, which means following the zeitgeist. The zeitgeist is, of course, mostly moved by powerful institutions like the press and higher education which were definitely captured by the left during the time period in question. Any measurement would then show more "loyalty" to the left than the right as each justice shifts somewhat to the left.

As a conservative I philosophically agree that I want justices to be bound by what the constitution actually says, rather than just help our side "win".

However, in practice such judicial philosophy nearly always leads conservative justices to rule in favor of outcomes that conservatives want. (Which is probably why liberals view such statements skeptically). Look at this list of "non-conservative" positions Scalia took, for example: http://www.conservapedia.com/Antonin_Scalia#Non-Conservative_Positions. It's small potatoes, and many of them are issues where conservatives don't even have a clear consensus.

I think the judges who actually have a conservative judicial philosophy probably rule in favor of conservatives as much as liberals do for their side. The difference is that quite a few Republican appointees actually turned out to be (or evolved to be) liberals.

/// " I want justices to be bound by what the constitution actually says, rather than just help our side “win”. "

Apparently, very few SCOTUS Justices think that way.

Take Roe v. Wade (abortion) -- an honest Justice would readily note that the Constitution is completely silent on the issue of "abortion" and therefore (along with the 9th/10th Amendments) the Federal Government has no authority to act in this area.

Also, SCOTUS should nullify 90% of legislation issued by Congress/President for vagueness. If lower courts and a unanimous SCOTUS cannot readily interpret a law-- how are average citizens be expected to understand it?

A Five-Four SCOTUS voting split on any issue/decision should be automatic nullification of the specific law involved. If the learned SCOTUS Justices sharply disagree on a law's meaning -- that is prima facie evidence that the law is too vague, confusing or ill-composed to be enforced by the courts at all.

However, in practice such judicial philosophy nearly always leads conservative justices to rule in favor of outcomes that conservatives want.

The 'outcomes conservatives want' are commonly judicial abstention on policy questions. Liberals cannot conceive of elected officials being able to exercise discretion contra liberal preferences unless it's something they're not all that concerned with.

Very seldom do you find the judiciary actually obstructing liberal policy goals, rather than merely refusing to impose those goals via judicial ukase. Citizens United was one of the few and they've been in a lather about it for years. The policy goal in question, however, was to prohibit the opposition from assembling to promote their views while liberal assemblages still had the floor.

Two Presidents of the same Party may have different views on a variety of issues that we allow the Supreme Court to decide for us. Presumably the Justices a President appoints will have views closer to their own than to other members of their Party.

So I am not sure the comparison to future Presidents of the same Party really acts as the measuring stick they are supposing.

I think you would need to dig more into the issues presented in a case, vs. the views of that Justice, to test for a loyalty effect.

The variables were not lagged. Cases reach the Supreme Court years after the initial challenge in the district court.

I don't see how this is relevant. A sitting president usually cares most about the major cases that are heard during his tenure (even if they originated years before).

That's your problem that you don't see the problem.

Thanks for enlightening me!

It's Bill trying to justify the naked partisanship of him, his, and leftist justices. Bill probably thinks it is okay to commit aggravated assault in response to mean words, like what the DNC affiliates did last night in Berkeley.

Dan and Thomas, You guys have never engaged in research, have you. Let me spoon feed you with an example. Lawsuit begins in Clinton administration and reaches the Supreme Court in the Bush administration, The decision is upheld by the Ct. during the Bush administration, as a case argued by Bush's Solicitor General. Code it based on the initial filing date under Clinton, or under Bush? Lag the date to Clinton or keep the date as Bush?

Anyone who has ever dealt with data understands lagging a variable.

And of course, people change their minds. Even Supreme Court Justices. So a decision they make today may not be the same decision they would make if presented with precisely the same case 30 years later.

So if you appoint someone who agrees with you today, their views will likely drift further from yours over time. Which would lead to an observed loyalty effect, but which would not actually be the result of any such thing.

This isn't to say I don't think a loyalty effect exists. I would assume it does. But it probably isn't especially strong, its strength probably varies between Justices and Presidents, and this doesn't seem to be an analysis that actually demonstrates it.

This effect exists even when subsequent presidents are of the same party as the justices in question.

Which effect? The loyalty, or the decline of loyalty? I read it as the latter, so A Bill Clinton appointee, say, would be less "loyal" to Obama than to Clinton. If that's what they mean it doesn't seem surprising at all. Rather, it is what I would expect. Time passes, thinking changes, new issues arise, etc.

I wonder who Gorsuch will be loyal to considering that Trump obviously didn't pick him.

You're drunk. Sleep it off.

Definitely not. I might have drunk too much coffee though.

You really think that Trump has such a vast knowledge of current American jurists that he personally chose Gorsuch? Come on.
He probably cut a deal with the Party leadership before the election that in exchange for their support he would let them give him a short list of judges and he would select the SCOTUS nominee from that list. I'll bet anything that list was two people long. If that. Maybe he didn't even make the final selection. Maybe he chose at random on the air. Maybe he flipped a coin right before he went live.

You're an idiot. Every president has a personnel staff who collate vitae and vet appointments. So does anyone with more than two layers of people working under him.

Well, he appointed Steve Bannon to the National Security Council, so his track record so far does not give me confidence in his vetting process. Personally, I have no doubt that at least half of his appointments were picked by Republican Party leadership, rather than by Trump himself. Gorsuch seems like far too much of an "establishment" choice as well, considering he is basically a carbon-copy of Scalia.

Wait, Hazel, is your narrative "Trump is dumb, look at his picks", or is it "Trump doesn't pick his picks, look at his picks"? It's hard to keep up with the ever changing narrative as to why committing aggravated assault against Republicans is okay.

The Supremes are supposed to be loyal to the constitution not the president nor the government. They are supposed to affirm that laws and regulations abide by the constitution and not make laws or discover unwritten new rights in the constitution. That is the only standard by which to judge them.

I don't think the goal should be to judge them. The goal should be to construct our system aware of the realities of what a Justice will do.

Now, I do suspect that reality has changed over time. I think that the old belief in an Ideal Law that could be discovered by reasoning acted as somewhat of a constraint on the purely ideological decision-making of the Justices. And I think that even though the ascent of legal realism (even in the teaching of law to students) reduced this constraint, it didn't eliminate it. They are still constrained, when compared with the other branches, to try to appear objective and to have their reasoning appear non-ideological.

But it has been a mistake for anyone to assume, at any time, that they would act as neutral arbiters of some abstract law. They are ideological, they are powerful, and they sometimes exert their power in ideological ways. We should not base our system on what we wish they were, but on what they are.

+1

Yes, reading you above, it seems like we have a similar take on it all.

I am a relativist behind it all, but I agree that some Justices will be more constrained in their ideological behavior by the myth of the judiciary as neutral arbiters of the law than others will be. And in that framing, you could reasonably argue that one side in the ideological wars tends to be more constrained than the other, and I would probably agree.

I had a law professor, Prof. Vermeule, whose answer to this issue (or something comparable to this issue) was basically: disarmament. Both sides should recognize the extent to which the judiciary is ideological, and is making political decisions, and the fierce battles that take place around judicial appointments as a result. And that the best way to disarm is to limit the judiciary's role more than we do now. Or at least, I think that was his answer (sorry if I misunderstood you, Professor).

Very good posts. There is one justice who has written some opinions that, alarmingly to me, suggest that this particular justice would be happy to throw off the constraining façade entirely. This would be a long-run disaster for the Supreme Court in particular and the court system in general.

I have to admit to not keeping up that well with Supreme Court cases and opinions, so I'm not sure I know which one you mean. If I had to make a guess based on my limited readings of recent decisions, however - are you referring to a particularly Wise Justice?

How much of this is just the Overton Window shifting from traditionally christian conservative positions related to rulings?

Is there a word for the idea that you should discount (even if slightly) an article by well-known authors if the paper says exactly what you would have already expected those authors to say?

"Smart"

(just being a dick, or course - I would actually like to use such a term if it exists, but I can't think of one)

If calling me smart is being a dick, then dick away my friend.

I like "then dick away" and will absolutely be adding it to my phrasebook.

That verb can be transitive, as well as intransitive.

On a related note:

"EICHENWALD: NEIL GORSUCH IS SUPREMELY QUALIFIED, AND MUST NOT BE CONFIRMED"

This is a very hard column to write. I’m about to abandon everything I have believed for much of my life about the proper principles for federal governance. Unfortunately, too many of our political leaders did that long ago, which makes this conclusion inevitable: Federal Judge Neil Gorsuch, President Donald Trump’s nominee for the Supreme Court, must not be confirmed. Democrats must fight it to the bitter end. The preservation of the final, tattered remains of American constitutional government demands it."

http://europe.newsweek.com/why-neil-gorsuch-must-not-be-confirmed-supreme-court-eichenwald-551429

So, I will throw all my principles aside and recommend that Democrats act in a Partisan manner, because of principles?

He never had any principles on procedural matters. These were just improvisations to justify him and his getting what they want. With very few exceptions, all of the portside is like this.

There's a lot of that going around. Look for gotterdammerung when Trump introduces H-1B reform milder than the one Democrats proposed last year.

Did republicans and conservatives seriously think anything else was going to happen after eight years of what they did to Obama PLUS a totally unlikable president and an incensed base?

That's a good question. Many probably saw this coming, but some are so partisan they literally cannot conceive of why there is opposition.

I'm just pleased to see a Democrat who's openly advocating throwing principles to the wind and engaging in full out partisan warfare. Usually, they try to be circumspect about it and claim some form of moral superiority. This article is refreshingly honest. ;)

And beating up on individuals you don't agree with is par for the course, though I'm decidedly unpleased about this type of Leftwing extremism.

http://www.thegatewaypundit.com/2017/02/video-violent-leftists-chase-beat-man-unconscious-berkeley-riots/

The sad thing is that the people they assaulted probably weren't Trump supporters.

Well he didn't actually give up on moral superiority, since he added, "The preservation of the final, tattered remains of American constitutional government demands it."

They werent Trump supporters before, but they are now. Violence of this scale and natures forces the undecided middle to choose, and they arent going to side with the agitators. Getting assaulted and teargassed doesnt lend much positive feelings either.

All political tactics. The Democrat party leadership knows full well that, sooner or later, Gorsuch will assume Scalia's places on the court, restoring the previous 4-4-1 ideological arrangement.

The real objective of Democrat obstruction in the Senate is to goad McConnell into killing the filibuster. This will: 1) in the immediate-term, stoke outrage and thus motivation among the Democratic base; 2) in the long-term, provide the Democrats the precedent and pretext they need to ban the filibuster themselves next time they control the Senate; 3) hopefully (in the Democrat party leadership's minds) hasten Republican political overreach by enabling the GOP to pass whatever the hell it wants and thus (again, they hope) provoke the maximum backlash possible in 2018 and 2020.

To mount a political comeback, the Democrats need their base to be as angry and disaffected as possible. Republican electoral successes since 2010 have convinced them that outrage and loss aversion are far more effective motivators than optimistic promises of unity and prosperity. Of course, the Dem party leadership is unlikely to admit any of this in public.

Uh, Democrats already did away with filibusters except for appointments. Besides, such a strategy doesnt make sense when they have no remotely viable candidate to challenge Trump. Forcing GOP to do away with filibusters for SCOTUS appointments just means Trumps going to be able to nominate even more ideologically right wing justices all the way until 2024.

James C: Uh, Democrats already did away with filibusters except for appointments.

No shit, sherlock. I'm talking about banning the filibuster altogether. You're looking at this like a Republican. If the GOP bans the filibuster completely first, the Democrats can justify it to any potential whiners in their base by saying they're following the GOP's lead.

Besides, such a strategy doesnt make sense when they have no remotely viable candidate to challenge Trump.

Not yet. They've got 4 years to find one.

Forcing GOP to do away with filibusters for SCOTUS appointments just means Trumps going to be able to nominate even more ideologically right wing justices all the way until 2024.

You're assuming a Trump re-election in 2020. That's premature.

If his economic plan fails, he's fucked. If the economy tanks again, he's fucked. If he gets us bogged down in another Iraq-esque fiasco abroad (like, say, an invasion and occupation of Iran or a shooting war with China), he's fucked. If he lets the GOP Congress overreach (by, say, voucherizing Medicare and/or privatizing Social Security), he's fucked. If in 2020 the Democrats find a candidate who's a charismatic moderate who can speak Bubba and appeal to enough moderate conservatives who only voted for Trump solely because he wasn't Hillary, he's fucked.

I realize that, right now, to reactionary and conservative eyes, Trump is an invincible, unstoppable 100-foot tall, tiger-blooded leviathan who just ushered in the beginning of a 1,000-year Republican reich. The GOP thought the same thing about W. The Democrats, about Obama and, before that, Clinton.

It's all fantasy bullshit. Trump is human. Accordingly, he's vulnerable.

+1. And I'm still not convinced the guy will want to run again, having to defend a record, at age 74, vs a not-Hillary. He can just declare he did what he said he'd do and not run, thereby not risking a loss.

Overall good points.

"The real objective of Democrat obstruction in the Senate is to goad McConnell into killing the filibuster."

Yeah, I have a hard time seeing this as a great loss. Harry Reid already took us most of the way there, the political hit at this point will be minimal, and only an idiot would believe that Republicans sticking to the filibuster now would keep the Democrats from doing away with it in the future when it would benefit them.

I suspect McConnell will attempt to get the nominee through by getting 60 votes. Failing that he will either a) Nuke it and push the nominee through or b) in consultation with Trump, drop Gorsuch and Trump will nominate someone distinctly more to the Right. Then when the Democrats attempt to filibuster the second pick, he'll Nuke the filibuster and then claim the Democrats were unreasonable, were never going to agree to any Trump pick and he had no choice.

Captain Obvious seems to publish lots of papers.

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