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Politics and Pragmatism: Elections, Appointments, and Confirmations

September 19th, 2020, 4:25 pm

This thread will cover some of the practical matters related to political elections, appointments, and confirmations, particularly the US Supreme Court at the moment.  Not US-centric, that's just a starting point, and also not limited to facts, legal arguments, historical precedents, or pragmatism. Because this is W Forum and we know, through a pretty large sample, that anything goes. ; )
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Re: Politics and Pragmatism: Elections, Appointments, and Confirmations

September 19th, 2020, 4:41 pm

In relation to the death of Ruth Bader Ginsburg and the process for nominating and confirming a new Supreme Court Justice at this stage of a Presidential election cycle, here is some useful information:

Appointment and confirmation to the Supreme Court of the United States - Wikipedia

Note the following:

1) The average and median time for confirmation - about 2.3 - 2.3 months.
"According to the Congressional Research Service, the average number of days from nomination to final Senate vote since 1975 is 67 days (2.2 months), while the median is 71 days (or 2.3 months).[20][21] "

2) How things have gone in the past, in what could be the final year of a Presidency.

"Law professors Jason Mazzone and Robin Kar published a study in 2016 in which they wrote that a detailed analysis of Senate history does not support a deliberate inter-presidential transfer of nominating power from one president to the next. In their view, an actual vacancy ought to be viewed differently from a vacancy that is announced in advance but never actually vacated ("NV"); an elected president who makes a nomination ought to be viewed differently from a president-by-succession ("S"); and, a nomination made post-election-of-successor ("PE") should be distinguished from a nomination made earlier.[38][39]

Following is a list of those people who were nominated to the Supreme Court during the last year of a president's last term.[C] This list does not include presidents who never had an opportunity to serve what would have been their last year, due to resignation or death."

See full listing on the Wikipedia link above.

3) How does it work for blocking nominations and filibusters. Pay attention to pre- and post-2017 processes.

"Senate cloture rules historically required a two-thirds affirmative vote to advance nominations to a vote; this was changed to a three-fifths supermajority in 1975. In November 2013, the then-Democratic Senate majority eliminated the filibuster for executive branch nominees and judicial nominees except for Supreme Court nominees by invoking the so-called nuclear option. In April 2017, the Republican Senate majority applied the nuclear option to Supreme Court nominations as well,[2] enabling the nominations of Trump nominees Neil Gorsuch and Brett Kavanaugh to proceed to a vote.[3][4]
...

"Prior to 2017, a successful filibuster threat could add the requirement of a supermajority of 60 needed in favor of cloture, which would allow debate to end and force a final vote on confirmation. Under the old rule, a nominee could be filibustered once debate on the nomination had begun in the full Senate. A filibuster indefinitely prolongs the debate, preventing a final vote on the nominee. 
... (history and then after 2017) 

"The Republican majority responded by changing the rules to allow for filibusters of Supreme Court nominations to be broken with only 51 votes rather than 60. The precedent for this action had been set in November 2013, when the Democrats, who then held the majority, changed the rules, lowering the threshold for advancing nominations to lower court and executive branch positions from 60 votes to a simple majority, but explicitly excluded Supreme Court nominations from the change.[16][17]" - Wikipedia - link as above

Also note that currently: "The U.S. Senate has 53 Republicans and 47 Democrats (including two independents). There are 35 seats up in 2020 - including special elections in Arizona and Georgia - of which 23 are held by the GOP. Democrats will need to gain 3 or 4 seats to take control."

2020 Senate Election Interactive Map

Also note that Senate Majority Leader Mitch McConnell's seat is being contested in Kentucky - he is said to be leading int he polls by about 12% now, but this is only drawn from a sample of people who answer the phone and respond to the polling questions. Amy McGrath (D) is opposing him in that race and a "surprise" upset cannot be ruled out.

Another interesting article on the S.C. situation:

Four Reasons to Doubt Mitch McConnell’s Power - The Atlantic September 19

Bottom lines:

- This is very unlikely to be concluded before the election on November 3, due to even normal timeframes.
- If Biden wins by a "fair/wide" margin and/or the Democrats take the Senate, this may not be concluded before the inauguration.
- On the Senate side, in particular, look at the rules on filibusters - currently only 51 are needed to break one and the Republicans have a max. of 53 at this time.  However, several (R)s are somewhat maverick and also there are some very close Senate races, with about 6-10 races that may effect the ratio for 2021 onward. 

The drama will clearly continue this fall.

Comments are welcome and comparisons with processes from Europe and the rest of the world are also of interest.
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Re: Politics and Pragmatism: Elections, Appointments, and Confirmations

September 19th, 2020, 5:57 pm

It will be a fuse of Rockabilly, Punk (@0.30) and New Wave.

www.youtube.com/watch?v=Ugk4_1mlQ2w

Look at that minimalistic drum set.
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Re: Politics and Pragmatism: Elections, Appointments, and Confirmations

September 19th, 2020, 6:31 pm

Actually more like this - and the drum set is not minimalist! : D

The Gael - Albanach

They are streaming a concert live tonight since they could not play at the Highland Games (cancelled, but there in spirit!)
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Re: Politics and Pragmatism: Elections, Appointments, and Confirmations

September 19th, 2020, 6:51 pm

I used to live in my grandad's house .. he was the major of a pipe band .. they practiced all day. I didn't mind the pipes, it was the drums that got on my wick..

BTW the Irish invented the bagpipes as a joke and the Scots still haven't got it :-)

Paddy Keenan from the Bothy Band on elbow pipes (incidentally, he was in class ahead of me at school)

www.youtube.com/watch?v=XHI5lcMOWpU
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Re: Politics and Pragmatism: Elections, Appointments, and Confirmations

September 19th, 2020, 7:34 pm

RHCP(ipers) in recording studio

www.youtube.com/watch?v=QIvzPoA-Vq0
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Re: Politics and Pragmatism: Elections, Appointments, and Confirmations

September 19th, 2020, 8:04 pm

South of the border down Mexico way

www.youtube.com/watch?v=qsdNnPHqGug
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Re: Politics and Pragmatism: Elections, Appointments, and Confirmations

September 20th, 2020, 2:45 am

- This is very unlikely to be concluded before the election on November 3, due to even normal timeframes.
- If Biden wins by a "fair/wide" margin and/or the Democrats take the Senate, this may not be concluded before the inauguration.
- On the Senate side, in particular, look at the rules on filibusters - currently only 51 are needed to break one and the Republicans have a max. of 53 at this time.  However, several (R)s are somewhat maverick and also there are some very close Senate races, with about 6-10 races that may effect the ratio for 2021 onward. 

If Biden wins and Democrats take the Senate, I think a confirmation before inauguration will be a slam dunk. That's because even fence sitters like Susan Collins will rationally conclude that a more conservative Supreme Court will be a last chance to provide some checks and balances to the world to come. 

On the other hand if Trump wins, and Republicans keep control of the Senate, a more leisurely confirmation pace will be possible. 

That leaves the mixed control cases: Trump wins but Democrats take the Senate or vice-versa. Might come down to whether or not Collins herself wins reelection, as she might feel one way or another depending on whether she will continue to have a voice in the Senate  I like her -- she's obviously smart and thoughtful -- so it will be interesting to hear her reasoning under any of these scenarios.
 
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Re: Politics and Pragmatism: Elections, Appointments, and Confirmations

September 20th, 2020, 1:20 pm

So, in the (very unlikely) case of a Democratic sweep in November, the only hope would seem to lie in subsequently passing legislation that adds, say, five new seats to the court and summarily filling those. Of course, such legislation would be challenged and appealed, and we can not count on the affected justices properly recusing themselves. So probably not much hope after all.
 
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Re: Politics and Pragmatism: Elections, Appointments, and Confirmations

September 20th, 2020, 1:34 pm

I checked the broad informal public opinion poll of Twitter and that is always interesting. (I disagree with people who say it is just for idiots - a wide array is represented there.)

But I'll go back to my sabbatical now - I am doing research on US and international environmental law, human rights. and I am also rowing, cycling, hiking, and pumping iron.

Whatever happens this fall, if I have to drive, walk, bike, or row to Cape Breton any time in the months to come, I am super-fit and ready for the journey! ; )

PS: I checked to see if the invitation from Canada still stands after 4 years and it does!

If... (Canadian Humor, eh?)

Welcome to Cape Breton 

So, they are writing an American call, at least for now. 
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Re: Politics and Pragmatism: Elections, Appointments, and Confirmations

September 20th, 2020, 7:23 pm

@"1) The average and median time for confirmation - about 2.3 - 2.3 months."

So she, nomen omen, concluded exactly at the time before the election to keep everyone in the maximum suspense?

------

@"I checked the broad informal public opinion poll of Twitter and that is always interesting. (I disagree with people who say it is just for idiots - a wide array is represented there.)"

Be careful though, the Twitter polls and sentiment analyses failed to predict Brexit and (miserably) to predict the UK election result.
 
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Re: Politics and Pragmatism: Elections, Appointments, and Confirmations

September 20th, 2020, 10:50 pm

@"1) The average and median time for confirmation - about 2.3 - 2.3 months."

So she, nomen omen, concluded exactly at the time before the election to keep everyone in the maximum suspense?

Reminds, What else can we pile on?