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Blogger Sandy Changes his Mind! (Well, Mostly…)

But If Trump Does It…We Better Fight Smart!

It started with a friend at church trying to work out the apparent hypocrisy or at least inconsistency between the 2016 situation (Garland) and 2020 (Trump’s pick). He was struggling; I had placed my post up Friday night or Saturday night.

Then I started reading: Various different scenarios; this is different than a year where the President is term-limited; take the chance; no don’t do it – the effort will galvanize the Dems to vote against Trump and GOP senators; etc., etc.

But Bob Shannon placed his comment and that moved me – I do have a lot of respect for Bob – and while I can justify my position as a potentially sound political move – I was really wavering.

There is a media source I trust (even though is a bit more hawkish than I am) and that is the End of Day Report by Gary Bauer.

Bauer’s analysis today was this:Senate Majority Leader Mitch McConnell has been clear that the president’s nominee will get a floor vote.  Here’s some additional history bolstering the case for why this president and this Senate should fill this vacancy: 

15 times in U.S. history, a Supreme Court vacancy arose in a presidential election year and the president nominated someone that year.

7 of those 15 times, voters had put in place an opposite-party Senate. Only 2 of these 7 nominations were confirmed, the last in 1888.

8 of those 15 times, voters had chosen a Senate majority of the same party as the president. 7 of those 8 nominations were confirmed.

Historical precedent supported the Senate majority’s decision in 2016 and historical precedent supports the Senate majority’s decision in 2020.

So I have decided to change my mind about the matter. Mostly! I still think the position of the GOP this time would be stronger if they had given Judge Garland a hearing and then voted it down. But I know why they did that: Squishy Republicans! “Well, Garland’s is certainly not like Scalia, but he is eminently qualified for the Supreme Court and there is no scandal or any other good reason to vote NO…”

So the only way to be sure is to deny Garland a hearing. Here is the take of National Review and they make a good point:

Garland was doubtlessly disappointed that he came as close as he did to achieving such an honor, only to be denied a hearing. But Senate Republicans were under no obligation to give him one, much less to confirm him. Moreover, Republicans avoided personal attacks on Garland, instead arguing that, because the president and Senate had opposite views on the matter, voters should be given a voice in the kind of justice who would succeed Scalia. Ultimately, Garland was not a satisfactory pick to a majority of senators, so he was not elevated. Compared to how Republican judicial nominees have been treated for the past several decades, Garland’s treatment was positively heartwarming.

Here is NR’s take on the history of nominations and I find it compelling. It is as much an indictment of our full-time Congress (I’d try to get rid of it if I ran for Congress) as evidence of hypocrisy on SCOTUS nominations:

It is, however, true that none of the nominees confirmed before the election passed the Senate later than mid-July. Why? Mostly because the Senate was out of session. It was once common for the Senate to be out of session for much of the summer and fall.

There’s a cause for someone: Get Congress home by July 4, if not Memorial Day! The Republic would be better off.

Thank you, Bob Shannon and National Review and Gary Bauer!

But if we fight, let’s fight smart! Get the pick selected and then fight to keep the Senate and the Presidency. 2020 is NOT 2016. Fill the Seat!

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

3 Responses to “Blogger Sandy Changes his Mind! (Well, Mostly…)”

  1. Robert E Shannon

    Among the many reasons I like and respect Sandy Sanders is his deliberate and heartfelt willingness to consider other points of view. We are a better community as a result of having Sandy Sanders living in it. We would be very pleased if one day Sandy served in elective office, and personally I would work hard on his behalf if given that opportunity. I have learned much working over the years with such a wise and thoughtful man. Sandy brings to mind in his current post the very stark contrast with which Garland was treated and Brett Kavanaugh during his confirmation hearings. Republicans simply chose to exercise their lawful right to deny Garland a hearing on legitimate grounds that the Senate at that time was of the opposing party of the then sitting Democratic President. Contrast that with the deliberate and concerted attempt to ruin the reputation of a honorable man, husband, father and legal scholar. The U.S Senate is often referred to and has historically been noted as the worlds most deliberative body. in this example it was anything but that. It reminded me as I watched what happened to Robert Bork and Clarence Thomas during their confirmation hearings decades ago.
    With the possibility that the pending Presidential election being thrown into literal chaos it is imperative that we have 9 sitting Justices should it come down to decisions over what votes should be counted and which votes should be discarded. Examples throughout a dozen states that are planning to now allow mail in votes be counted, in some cases weeks after November 3, having a full Court of 9 is not a matter of preference, but one of absolute necessity. We are a nation of laws and the U.S Supreme Court may ultimately be charged with the somber responsibility as they were in 2000 of deciding just who leads the United States over the next 4 years. Biden’s unwillingness to publicly name the candidates he would consider for nomination alone should give every voter pause. The drift leftward , both politically and socially must be halted if we are to remain a nation that resembles anything our wise Founders would recognize.

    Will that goal, a return to conformity with the Constitution be advanced with a pick of President Trump or Joe Biden ? It isn’t a trick question
    Bob Shannon

    • BrotherCanUSpareADime says:

      The real news is not only Trump’s unconstitutional SCOTUS pick, but Democrats refusal to challenge that pick in Federal court. When it comes down to it, Democrats refuse to support a woman’s right to choose and affordable healthcare just like Republicans. All three of Trump’s picks are catholic. If Trump’s latest nomination is confirmed, that will make 7 out of 9 SCOTUS justices the same religion.

      Article 6, Clause 3 of the US Constitution deals with appointments and hiring. It says that religion cannot be used as a test to appoint or hire someone.

      If religion is not being used as a requirement for SCOTUS nomination, then how do we end up with 7 justices of the same religion?

      All 3 of Trump’s picks are catholic, a religion that does not believe in abortion or birth control. Trump is so clearly trying to end a woman’s right to choose by nominating people to SCOTUS who were raised and educated that a woman does not have the right to choose. You wouldn’t be able to purchase a condom if they have their way.

      Here is a link to what Justice Sotomayor said in a speech in 2016,

      Don’t even bother trying to peg me as being anti-catholic. This comment is about those who are anti-Protestant. Having 7 catholics and 0 Protestant SCOTUS justices proves that without a doubt.

      If catholics Nancy Pelosi, Senator Tim Kaine, along with “catholic lite” Sen. Mark Warner, are really about women having the right to choose and affordable healthcare? Then why not challenge this latest unconstitutional Trump pick in Federal court and let a judge make that decision? Afraid of the result?

      Pelosi, Kaine, Warner, where are you when it really, really, matters? You wasted about 8 months on a phony impeachment with a Republican senate that was laughing the whole time because they knew Pelosi was just playing to the cameras.

  2. Gene Lefty says:

    2016, Republicans in the Senate threw the constitution under the bus by not taking action on the nomination. They got away with it. 2020, Trump has the right to nominate. But, his nominee is unconstitutional because it violated the constitution.

    How anyone can come to any conclusion that the Republican Senate followed the constitution in 2016 is beyond reasonable comprehension. Perhaps McConnell was just to busy with the family’s communist Chinese shipping business?

    The constitution is no longer worth the paper it is written on to either political party. You cannot put the Jeanie back in the bottle. Oh, and I will not be voting for either Trump or Biden. I’ll do the same write-in as last time. I am proud to say that I am not a Democrat or a Republican.


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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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