The Constitutional Work Before Us

The Supreme Court is lost. Sunday night’s debate settled that. The question now is not how to save the Court but rather how to navigate an adverse one, and the answer is to deprive it of power.

The constitutional takeaway from the debate was that Justice Scalia’s successor will be appointed by a President who believes judges should decide constitutional cases on the basis of empathy, and who therefore makes a wholly normless case for protecting Obergefell and Roe while overturning Citizens United, or by one who promises to jail his political adversary, who cannot distinguish a felony from “locker-room talk” and who is incapable of articulating a constitutional philosophy beyond name-checking the Second Amendment.

Yuval Levin and Ramesh Ponnuru have written the definitive brief on the anti-Constitutionalism of Hillary Clinton’s Progressivism. Donald Trump on Sunday, as before, supplied the equally definitive case for the anti-Constitutionalism of Donald Trump. The “save the Court” case—the last refuge of the Trump apologist—now lies in tatters.

Asked at the debate what kind of justices she would appoint, Clinton replied with a soliloquy about “real-world experience.” Apparently the real world supplies a principle by which, mirabile dictu, the Court would uphold cases with whose policy outcomes she agrees (Roe, Obergefell) while overruling those to which she objects (Citizens United).

Meanwhile, Trump’s reply, which contained not a word of actual constitutional reflection, was a hat tip to Scalia and the Second Amendment along with his vaunted (and “beautifully reviewed”) list of judges. But his most significant constitutional moment had come earlier, when he pledged not merely an investigation of Clinton but announced its conclusion (a prosecution) and the prosecutorial outcome (“you’d be in jail”).

We are not, suffice it to say, dealing with constitutionalists. It would also be well to recall that appointing Supreme Court justices is not the only, perhaps not even the primary, impact presidents make on the Constitution. They also set precedents in presidential practice. They hoard or share authority. They respect tradition or veer in new directions.

If the question, then, is how to navigate a constitutionally adverse judiciary—not to mention White House—the answer on both principled and political grounds is to deprive the Court, and the presidency, of power and restore it to the Congress.

The principle begins not with the role of the Court in the American scheme but rather with the role of power. It is regarded with measured suspicion—not the “neurotic terror” of Louis Hartz’s accusation, for the framers understood the need for authority and sought to establish it, but a reasonable wariness that bridles power and channels it.

“Wherever the real power in a Government lies, there is the danger of oppression,” Madison wrote. Madison believed the real power lay with majorities, whose deliberation must therefore be encouraged. The underlying principle, previously elucidated by Shakespeare and later taken up by Bertrand de Jouvenel, is that power is inherently dangerous and that flirting with it situationally—for power when it suits one’s priorities, against it otherwise—is a fool’s game.

The concentration of power is thus to be avoided.  Madison’s warning in Federalist 48 against the “impetuous vortex” of legislative ambition teaches a similar lesson: not simply to watch Congress, but to watch power, wherever it may be.

And wherever it may be, it decidedly is not with Congress today. Congress is supine before a dominant president and an arrogant and unchallenged court. One reason for the latter is that judicial power regained a degree of popularity on the right around the time the right regained a degree of judicial power. Judicial engagement types who tirelessly advocate for a federal judiciary clothed with immense power may get their wish, but the victuals they are served won’t be what they ordered.

Still, it is not too late to limit the size of the feast. That depends on two elements of constitutional morality: an appropriate understanding of a judge’s role and, to secure it, restoring a system of separated powers to which the judiciary, like other branches, is subject.

That a judge’s proper role is constitutionally modest and limited to applying the law to the case before him is inherently conservative. It is rooted in suspicion of concentrated power and a confidence in the deliberative processes of self-government.

When William F. Buckley said he would rather be governed by the first 2,000 names in the Boston phone book than by the Harvard faculty, he might also have mentioned the Supreme Court in the latter category. When Robert Bork—a martyr to the legal right until libertarians decided he was, in Randy Barnett’s unfair formulation, a “moral nihilist”—wrote that “in wide areas of life majorities are entitled to rule for no better reason [than] that they are majorities,” he followed James Madison’s republicanism.

In Federalist 10, even while inveighing against majority factions, Madison acknowledged their title to rule: In a dispute to which majority factions were parties, “the parties are, and must be, themselves the judges; and the most numerous party, or in other words, the most powerful faction, must be expected to prevail.” (emphasis added) Federalist 51 similarly rejects solving the problem of majority abuse “by creating a will in the community independent of the majority, that is, of the society itself.”

What that essay offers is a system that limits the damage any one branch can do without cooperation from the others. Hamilton tells us in Federalist 78 that judicial usurpation need not be feared in part because the judges depend on executive enforcement of their decrees, which is only a reason not to fear if that enforcement is discretionary.

Congress has other tools at its disposal, from impeachment to altering the size of the Court. It is true that many of these are ultimate tools—though not all are; laws can be repassed over judicial objection, for example—but the justices are winning a game of constitutional chicken whereby the assumption is that legislators will not employ them. Using them once might be all it takes to remind the court they exist.

Meanwhile, depriving the next president of authority—such as by ending the emasculating process of omnibus appropriations, refusing all White House priorities if the president usurps Congressional priorities, cutting off funds and the like—would also do much to curb lawlessness.

The current campaign has made the case for Congress in striking terms. The presidency can be seized by impulsivity. Corrupting five of nine justices—that is, corrupting them constitutionally, with inflated notions of importance—takes little imagination. That the most consistent complaint against Congress is inactivity is a compelling reminder of the difficulty of coopting the totality of the legislative branch. If power is the problem, then dispersal, and consequently Congress, is the answer.

There will be voices for constitutionalism in Congress next January. How many depends on how many more fires Trump or Clinton set. But there was no such voice at the debate Sunday night. So deprive those on the stage, one of whom will occupy the White House, of power. Deprive the justices that one of them will appoint of power. Then restore it to the legislative branch where, constitutionally, it already belonged.

Greg Weiner

Greg Weiner is a contributing editor of Law and Liberty.

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  1. Derek Simmons says

    What was once usurped and ever accreted can–with more moxie and spine than any current leaders posses–be returned to the rightful owners, “We the People.” It’s not theoretical, but it surely is improbable.​

  2. Devin Watkins says

    How can you both be “suspicion of concentrated power” and defer to the congress/the President? No, the founders rejected the idea of judicial deference to the legislature writ large, as Federalist #78 said: “If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.”

    It is the duty of each judge (and legislator)—based on the oath they are required to take—to read the constitution, decide if the statute violates it, and use all the powers of their office to stop that statute. If judges just defer to the elected branches, there is no point in having judges interpret the constitution in the first place, as the Court said in Marbury v. Madison: “Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner to their conduct in their official character. How immoral to impose it on them if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!”

    The founders were no supports of democratic majority rule. John Adams said: “[D]emocracy will soon degenerate into an anarchy, such an anarchy that every man will do what is right in his own eyes and no man’s life or property or reputation or liberty will be secure.” James Madison said in Federalist #10: “ [In a democracy] a common passion or interest will, in almost every case , be felt by a majority of the whole; a communication and concert results from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. . . [D]emocracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property.”

    Bork was wrong, in wide areas of life we have liberty and freedom, and in a few areas we delegate power to government. As Benjamin Franklin said, “Where liberty dwells, there is my country.” Or as James Willison said, “Without liberty, law loses its nature and its name, and becomes oppression,” Or as Patrick Henry said: “Liberty, the greatest of all earlthy blessings – give us that precious jewel, and you may take every things else! . . . Guard with jealous attention the public liberty. Suspect every one who approaches that jewel.” Or as Abraham Lincoln put it: “Four score and seven years ago our fathers brought forth upon this continent a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.”

    It is liberty and freedom that is the foundation of our nation in large areas of life, and we have delegated the power to majorities only to constrain one person from taking the liberty of another.

    It is true that there are built-in checks on the power of judges, and to the extent that the Congress and the President believe the Court is not properly interpreting the Constitution, they can (and should) use those powers to check the powers of the Court as the Constitution allows. Impeachment in cases of single justices going far beyond their powers. If the legislature and the President believe the Court is wrong in interpreting abortion cases, they can remove the jurisdiction of the courts (including the appellate jurisdiction of the Supreme Court) in all cases concerning abortion. That is within their powers, and it is up to them to decide when to properly use those. But that doesn’t mean that judges should just defer, they have their own duty to the extent they can hear the case to decide the case based on what they believe the Constitution means, and no one else.

    • Greg Weiner says

      James Wilson, Lectures on Law: “The only remaining question, then, which can be proposed, is, which is most reasonable and equitable—that the minority should bind the majority—or that the majority should bind the minority? The latter, certainly.” Lincoln, First Inaugural: “From questions of this class spring all our constitutional controversies, and we divide upon them into majorities and minorities. If the minority will not acquiesce, the majority must, or the Government must cease. There is no other alternative; for continuing the Government is acquiescence on one side or the other.” Franklin, Philadelphia Convention: the Articles allowing a minority of states to “overpower” a majority was “contrary to the common practice of assemblies in all countries and ages.” Madison, correspondence: Majority rule is “the vital principle of our free constitution.” (The use of Henry, who opposed the Constitution bitterly, is curious here, but just for the record, Henry in VA Convention: “One of the leading features of [Virginia’s] Government is, that a majority can alter it, when necessary for the public good.”) Quoting the Framers on on liberty outside these contexts doesn’t help, especially since one of the liberties they held sacred was self-government. The question was always how to reconcile their commitments to liberty with their equally firm commitments to majority rule. The answer was to create conditions in which majorities were likelier to be deliberate. Their criticism of majorities was *never* criticism of the principle of majority rule any more than, say, a libertarian constitutionalist’s critique of NFIB v. Sebelius today is a critique of the Supreme Court’s underlying authority. In both cases, it is a recognition that the authority can be badly used, not a critique of the authority itself. If there is a case in which any of the Framers above mentioned critiqued the legitimacy of majority rule itself, as opposed to criticizing majorities, I would be curious to hear it.

      • gabe says

        The only quote you left out was Lincoln arguing that a society content to be ruled by a majority of Sup court justices ceased to be a republic. (And no I don;t do “dueling quotations” so I’ll only paraphrase here.)

        You are quite correct with respect to majority rule AND deliberation – that was the entire purpose of the Federal Structure and a tripartite system of branches – to assist, if not COMPEL, deliberation.

        Of course, the other underlying predicate was a certain level of virtue in the citizenry and their representatives. All these theories of judicial interpretation / deliberation FAIL as a the intended panacea simply because humans, in particular, jurists are far too *clever* and manage to find ways to reach their own policy preferences.

        Restraint, activism, deference, engagement – all amount to gaseous turbulence when one factors in human frailty, the absence of virtue and individual motivations.

        after a while, one gets the impression that one is listening to a sports broadcast where the broadcaster appears compelled to fill the airwaves with meaningless statistics, quotes, insider tips, etc WHEN all the viewer wants is to observe the dang game without the broadcaster’s narrative.
        Judges have narratives. Let the players sort things out themselves except in exceptional circumstances.

      • Devin Watkisn says

        You are quoting Wilson out of context, here is the greater context. “In society, when the sentiments of the members are not unanimous, the voice of the majority must be deemed the will of the whole. That the majority, by any vote, should bind not only themselves, but those also who dissent from that vote, seems, at first, to be inconsistent with the well known rules—that all men are naturally equal; and that all men are naturally free. From these rules, it may be alleged, that no one can be bound by the act of another, without his own consent. But it is to be remembered, that society is constituted for a certain purpose; and that each member of it consents that this purpose shall be carried on; and, consequently, that every thing necessary for carrying it on shall be done. Now a number of persons can jointly do business only in three ways—by the decision of the whole, by the decision of the majority, or by the decision of the minority. The first case is not here supposed, nor is there occasion to make a question concerning it. The only remaining question, then, which can be proposed, is, which is most reasonable and equitable—that the minority should bind the majority—or that the majority should bind the minority? The latter, certainly.” What he is saying is that “society is constituted for a certain purpose; and that each member of it consents that this purpose shall be carried on” and for those purposes AND ONLY THOSE PURPOSES majority rule is fine because everyone consents to that. I agree with him, for some specific subjects we have delegated power to the government to rule through majority rule, but that doesn’t mean that the government has through majority rule the ability to bind us to anything.

        Again you quote Lincoln out of context, because right after that quote he said “If a minority in such case will secede rather than acquiesce, they make a precedent which in turn will divide and ruin them, for a minority of their own will secede from them whenever a majority refuses to be controlled by such minority.” Its clear he was talking about within the scope of proper government power it is right for majorities to rule and that minorities cannot just secede from the union. For before it he said “If by the mere force of numbers a majority should deprive a minority of any clearly written constitutional right, it might in a moral point of view justify revolution; certainly would if such right were a vital one.” Nor do I (or anyone else) believe in government being ruled by a minority. It is for this reason that I agree with Franklin and Madison, that no group, majority or minority, has the right to violate the rights of liberty, but that a government run by a minority is also wrong in violation of the common principles upon which society is built.

        Majorities do have the right to rule in the limited areas where they have been delegated the power to do so. When majorities go outside of those limited areas it becomes what the founders called “tyranny of the majority.” When the majority decides to do debtor relief laws or other laws designed to take property from A and give it to B, the Founders were quite clear that such was outside of the scope of properly delegated legislative authority and as such improper and illegal. James Madison in Federalist #10: “Measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.”

        • gabe says

          Devin:

          Are we all arguing over “how much we agree with each other”?

          These last comments are eminently sensible and quite correct. I doubt that Weiner would disagree with them. I certainly don’t.

          Is not the issue here, as it almost always seems to be nowadays, “What are those rights that must not be trammeled (by either a majority or minority) and in the specific case or controversy are those rights actually being denied or abridged. Additionally, one must accept that there are certain accommodations an individual must make if he or she is to participate in a community. This may be seen as part of the “consent” required so that ” this purpose shall be carried on.”

          At first, one may ask: “Who is to decide this / define this *accommodation*?

          But I think there is a more fundamental question, and one which is consistent with what i take to be your own thinking:

          “Why is the State involved in this sphere at all.”? Government, with or without majority / minority approval simply OUGHT NOT to be involved in the lives of the citizenry to the extent that it currently is.
          Your “hat” example is correct. So too is same-sex marriage. Each intervention by the State engenders another obligation upon the citizenry AND consequently further interventions by the Judiciary.
          Simply put – why is Judicial determination / mandating of obligations any less onerous than obligations imposed by the Legislature?

          • Devin Watkins says

            I hope we are in agreement, I wrote my post under the belief that he was disagreeing with me. I agree with everything you wrote. Maybe I’m wrong, but to me he seems to be taking the stance of Robert Bork’s confirmation questioning that “in wide areas of life majorities are entitled to rule for no better reason [than] that they are majorities.” Frankly I’m not sure even Bork really believed this, look at his opinion in Ollman v. Evans, 750 F. 2d 970 (D.C. Cir. 1984): “The important thing, the ultimate consideration, is the constitutional freedom that is given into our keeping. A judge who refuses to see new threats to an established constitutional value, and hence provides a crabbed interpretation that robs a provision of its full, fair and reasonable meaning, fails in his judicial duty. ” Not a lot of deference going on there to legislature’s opinion on the Constitution, instead it is focusing on the duty of the judge to independently interpret the Constitution. Look at Robert Bork’s 1963 article in the New Republic, he denounced Title II of the Civil Rights Act’s public accommodation requirement: “There seems to be a strong disposition on the part of proponents of the legislation simply to ignore the fact that it means a loss in a vital area of personal liberty. That it does is apparent. The legislature would inform a substantial body of the citizenry that in order to continue to carry on the trades in which they are established they must deal with and serve persons with whom they do not wish to associate.” http://digitalcollections.library.cmu.edu/awweb/awarchive?type=file&item=691571

            Freedom and liberty is the foundation of our society, and we delegate some limited powers to government (not the other way around).

          • Devin Watkins says

            Mandating of unconstitutional obligations by either the legislature or the judiciary are onerous. Both must be in agreement that a statute is constitutionally valid before any such obligation can be legally imposed.

        • Paul Binotto says

          Citizens in a Democracy consent to the accept the legal ( I would say, and moral), will of the majority, in return for the right to remain in dissent (peacefully) and to seek to draw the majority (in the public square) over to the minority, thus securing a new majority,

          The greatest tyranny of the majority occurs when the majority seeks, through governmental, legal and social means, to stifle or deny this basic right of the minority to hold fast to their dissent, to assert their dissent in the public square, and to seek to coalesce a new majority.

          This is a tyranny that is very much becoming a reality in the United States.

    • Scott Amorian says

      Well, yeah. That case would be the Constitution itself contradicting majoritarian rule.

      The Constitution establishes a federalist system, not a majoritarian system. The states retained rights to make laws locally. They were not governed by the national government in most respects. They retained a degree of independence from the national majority opinion with respect to their governance. That is not majoritarianism. That prevents majoritarianism.

      The Constitution limited the authority of the federal government over the states and citizens. That prevents general majoritarianism.

      The Constitution places lawmaking in the hands of a very small minority–in democratically elected representatives in the House and in senators appointed by the state legislatures. The House representatives were not required to do as the majority of the public demanded. The senators definitely were not either, being appointed by legislators who could also act according to conscience and not public will. The representatives may act according to conscience instead. The representatives act in the best interests of their public, not on the direct demands of the public. That is not majoritarianism. That is a protection against majoritarianism.

      The Constitution places the election of the president in the hands of a small minority. The electors are not required by the Constitution to vote according to the opinion of the majority they represent. They may act according to conscience. I believe the Framers would be aghast at the majoritarian mess it’s become.

      The difference between majoritarian government and representative government is public opinion vs public interest. The Constitution creates a public interest government, not a public opinion government. The lack of public understanding about that difference is where the train got on the wrong set of tracks. The solutions to the problems of government lie in moving the US towards the public interest government that the Constitution was intended to establish. That means breaking and fixing the parts that are overly majoritarian.

      Majoritarian government always ends with the public being ruled by those most gluttonous for political power and the most greedy. They tend to favor themselves at the expense of the rest of us. It doesn’t help us taxpayers when scholars advocate a system of government that is inherently dysfunctional and contrary to the intentions behind the designs of the Constitution.

      • gabe says

        Scott:

        Some good points as usual, i.e., public opinion vs public interest, majoritarian governance & rule by “gluttonous”, etc.

        some comments, if you will:

        1) Majoritarian government AND “deliberative” government are NOT mutually exclusive. There is a subtle balance between the two and I suspect that is what Mr. Madison (and others) were aiming at. A citizen must consent; the majority of citizens must then consent; that consent is enabled / made immanent via Representation. Yes, those Representatives ought to follow their conscience and the three branches ought to deliberate over available policy prescriptions. YET, it is clear that the “conscience” of the Legislators was NOT to be free of accountability by the People. Recall, that the House was placed on a biennial election cycle IN ORDER to assure accountability to the People – and thus, once again introduce Majoritarian influence into the Republic. This is a form of consent and the majority is deemed to provide that consent.
        The Senate, was to be a collection of States Diplomats and a deliberative COUNTER, not a negation, to the majority while simultaneously attending to the affairs of the *federated* Republics (States). Yet, they also could not act without a majority (in some cases a supermajority).

        There is no escaping the fact of majority rule. Recognizing that the, at times, “mobbish” majority may err in its thinking, and consequently establishing a system for deliberative braking of these unseemly tendency of the majority, does NOT, in and of itself, provide sufficient evidence to deny the proper role of majority consent in the thinking of the Founders. Rather, it indicates that Mr. Madison, et al, were prudent thinkers.

        It is an interesting proposition you advance – an “excess of democracy” – I suspect that Mr Madison would not look unkindly upon such an assertion. Indeed, he so structured a government as to mitigate against such a state of political affairs; still, it was a government predicated upon majority rule, albeit a majority comprised of virtuous citizenry and leadership.

        Perhaps, excess democracy is the direct outgrowth of a lack of *virtu*

        Seeya – and try some Oregon Cabernets out of Walla Walla AVA – don;t just stick to Pinots. Ha!!

    • gabe says

      “to decide the case based on what they believe the Constitution means, and no one else.”

      Well, I guess we see how well the courts work to protect our constitutional heritage and how what they believe may shape outcomes:

      http://hotair.com/archives/2016/10/11/appeals-court-consumer-financial-protection-bureaus-structure-unconstitutional/

      Wherein a Federal Court claims that the CFPB is unconstitutional because it is controlled by one man AND then turns around and puts it under the direct control of the President. Of course, no mention of whether the CFPB is fundamentally constitutionally unsound.

  3. gabe says

    Greg:

    Oh, how I wish it were to be so! BUT, the rot is far too extensive and widespread.

    Can you envision a modern president rejoining “The court has made its decision, now let it enforce it?”

    I cannot.

    Nor can I envision a congress actually taking the responsibility to override a SCOTUS determination and re-pass a law, or simply eliminate SCOTUS jurisdiction. (Didn’t they try that in Hamdan and the court ignored them?).

    Were this not so, there would be no Trumpster (and possibly no Fat Lady in a Pantsuit (or regrettably, albeit likely, in the Oval Office)). The Republic has been corrupted, the people grown fat, lazy and ignorant and are convinced of all manner of falsehoods by an even more corrupt media.

    It is argued that political ignorance is *rational* – So it is – UP TO A POINT, beyond which it becomes suicidal. We may have reached that point and it would appear that there no voices counseling against our own demise.

    What is left is nothing but angry, pointless outbursts directed at OUR own failures, though we are prone to claim that it is the *other* who is responsible for the failure of the Republic. In our *rational* ignorance we have forgotten our own duties as citizens, we have forgotten and / or denied our traditions / history and have, most regrettably failed to educate and inculcate in our own children these same traditions and history.

    How is it that we may now expect that a corrupt Legislative, an overly aggressive Executive and an arrogant Judiciary is going to be spurred to right conduct by a lazy, uninformed citizenry!

    I am sorry – I just don’t see it happening! We are far too concerned with our Bloody Rights and not our obligations. As our blogging friend, R. Richard is fond of asking: “What are the motivations” of all parties?

    • Paul Binotto says

      It might be said, that any chance for survival Sodom could have had rested solely with its minority. If the United States is to survive it would do well to learn from this failure of Biblical proportions.

      But, can it be, Mr. Gabe, that it is only our historical failures we are fated to repeat if we do not learn from them, or might this also be true of our historical successes? God, I hope so, even if I never live to see it.

      • gabe says

        Paul:

        I do hope so.
        Perhaps, we will stumble upon the proper path as “REASON” seems to have diverted us on to rather treacherous spur line.

        Let us hope that we may reclaim what is proper without an “appeal to heaven.”

        • Paul Binotto says

          Mr. Gabe, I can accept progressivism is not going to go away so quickly (and hopefully permanently), as bell bottoms, but what makes me really uneasy is how this portends for Disco.

          • gabe says

            I suspect that Disco Don has doomed himself and we will feel the full brunt of the Fat Lady’s Progressivism!

            till then, or during that time, Let there be good red wine!

  4. Paul Binotto says

    If there is a silver lining to the current gross abuses and power imbalance between the three branches on the Federal level; it is that it demonstrates the Founder’s wisdom & judgement as to the necessity for, and dangers inherent in the lack of, strict exercise of checks & balances between the branches. It further demonstrates, that their judgement, as laid down in the Constitution, has not been made obsolete by time and progress – but, vindicated.

  5. nobody.really says

    Justice Scalia’s successor will be appointed by a President who believes judges should decide constitutional cases on the basis of empathy….

    Presumably this refers to Clinton. Yet it is unclear to me that Clinton will have this power. After all, she can’t confirm a jurist without the consent of the Senate. And Senate rules still require a 60-vote majority for cloture. (The bipartisan deal to facilitate judicial appointments with a mere majority vote excludes Supreme Court appointments.) And there is basically no way that the Democrats will get a 60-vote majority in the Senate.

    So, as far as I can tell, Republicans will still be in a position to stonewall. They’ve demonstrated that they’re adept at this strategy, and that they really couldn’t care less about vacancies on federal courts. Why wouldn’t they just hold out for Ginsburg to die? She’s 83 and has had medical challenges.

    Basically, control of the Supreme Court is now a game of Survivor.

    • gabe says

      “They’ve demonstrated that they’re adept at this strategy, and that they really couldn’t care less about vacancies on federal courts.”

      Got your parties mixed up, did you?
      Check out how many court vacancies the Dopey Dems cared about during “W’s” term.

      Or if not stalling, how about “Robert Bork’s America” hymnal by the lecherous and murderous Sainted Ted Kennedy. Then again, there was Anita Hill and her tall tales – or was that “Long” tales (Ha!, you’ll get that one!). There ARE, after all, a number of ways to stall, ain’t there.

      And just when I was getting to miss you, you pop up with another “tale.”

      Well back to baseball playoffs – does not seem to be much difference in the quality of the blather by the broadcasters than here.

      Oh, and in deference to nobody.really – Go, Cubbies!!!!!!!!!

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