Thread: Ginsberg dead
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Old 09-21-2020, 02:47 PM
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That's sort of a loaded question Jake. A short answer just comparing 2016 and 2020 misses out on the Senate history of cloture and a key change that Schumer instigated in 2013. If you compare 2016 and 2020, they are similar but not quite the same.

In 2016, Obama was in the last months of his 2nd term in office and could not be elected to a 3rd term. Obama nominated Marrick Garland in March of 2016 for a vacant seat on the SC court due to Justice Scalia passing a month prior. Republicans were upset about Obama nominating a lib to replace a conservative and refused to schedule a vote on Garland. Dems were PO'd about it because they were worried that a Republican might succeed Obama as the next President (the Presidency often goes to the other party after a President is termed out) and wanted their chance to pack the court and change its' ideological direction. Mitch McConnell (Senate Majority leader) refused to hold a vote until after Trump was worn in. After Trump was sworn in, he nominated Neil Gorsuch who was confirmed 54-45 with Dems working hard to defeat Gorsuch's appointment.

In 2020, RBG died in September, approximately 2 months before the upcoming Presidential election. Dems want to wait to nominate a replacement because they hope Biden can pull it off. Dems are also not happy because Trump will nominate a conservative to replace a definite liberal on the SC. This is pretty much what Obama did in 2013 so the concept isn't new and the opposing side's irritation about it also isn't new. Interestingly, Mitch McConnell is still the Senate Majority Leader like he was in 2016. He's going to go forward with Trump's nomination and the Dems are not happy.

As you can see, the respective situations in 2016 and 2020 are similar but not quite the same. That was the short answer. And as I previously said, it doesn't provide a complete answer or understanding of the situation. For that, you have to go back to the 1975 Senate rules and then move forward to 2013.

In the beginning of 1975, a minority party could filibuster a nomination and it required a motion called "cloture" to override a filibuster and proceed to vote up or down on a nomination or bill. At the time, cloture required a 2/3rds vote of senators present (67 if all 100 senators were present). So if one party nominated someone or proposed a bill, you needed 67 (or 2/3rds of the Senators present) to override the minority party's objection and filibuster. Later that year (still 1975), the Senate changed the cloture amount to 3/5ths of the Senators (60) and that was the rule until 2013. Even with this reduction, you still needed to get some senators from the opposing political party to support your nomination, etc.

In 2013, Senate Majority Leader Harry Reid changed the 60-vote (3/5ths) rule with a rarely used parliamentary move called the nuclear option that changed the rules so that federal judicial nominees below the SC (think Appellate level) and Executive Office appointments could be advance to confirmation by a simple majority vote of Senators present (51 if all 100 senators were present). In 2012, the Dems had 51 Senators and after the 2012 November election, the Dems had 53. Both #'s were a simple majority but did not meet the 3/5ths requirement. President Obama wanted to get some Appellate Court Justices confirmed so Reid used that nuclear option and changed both the rules and Senate history. People said it would bite Reid in the keister but he said he didn't care.

The Dems were PO'd in 2016 when McConnell wouldn't schedule Obama's nomination of Garland for a vote. But that was nothing compared to when McConnell used the same nuclear option to override cloture with a simple majority vote (51) when Trump nominated Gorsuch for the same vacant spot (Scalia's seat) that Obama had tried to fill with Garland the year before. Gorsuch was confirmed 54-45 and the Dems weren't happy but it was a conservative Justice replacing a previous conservative Justice.

The very next year, Trump nominated Brett Kavanaugh (definite conservative) to replace Justice Kennedy (a liberal and swing voter on the court). The Dems cried foul and pulled out all the stops to defeat the confirmation process. We had that idiot professor try to pull a fast one and (IMHO) a lot of Dem Senators perjure themselves but you know how that goes (no accountability there). Kavanaugh was confirmed by a simple majority of the Senate (50-48). there's that pesky cloture rule change that Reid foolishly made.

Dems began hoping (not many of them pray ) that RBG and the other liberal Justices would outlast Trump as President so they didn't have to risk the court swinging conservative ideologically. Then RBG passed away a few days ago and now they are extremely worried. They know how the new rules work (thanks again to Harry Reid ) and know they have next to no chance of defeating Trump's nominee. If you thought Kavanaugh's hearing was bad, stand by to stand by.

So now you know a bit more about the differences between 2016 and 2020 and, more importantly, some of what's behind those differences.

Last edited by CalHunter; 09-21-2020 at 02:56 PM.
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