Tuesday, December 27, 2016

Constitutional Hardball: Confirm Merrick Garland on January 3rd? by Prof Samuel Wang

This morning I googled Merrick Garland Supreme Court nomination for some news.  It's shocking and frightening to find nearly nothing.  It’s like Democrats are oblivious to this crucial tiny moment of opportunity to preserve the cornerstone of our American government - you know, it’s checks and balances!  That the importance of getting Judge Merrick Garland onto the Supreme Court isn't on every Independent and Democrats' lips, I find that astounding and deeply demoralizing.  This is the sort of laziness that gets governments defeated and countries lost.

Losing the Supreme Court will have far reaching consequences. Consider how passionately many powerful Republicans want to turn us into their “Christian Nation” under their personal god.  With the entire government in their hands, you better bet they will do their best to make it happen and given how pliable the DNC seems to be, they may get their way.  Who's to stop them?  Seriously, think about it.  This is for keeps.  Who's to stop this run away train wreck?

About the only thing I found worth sharing was this fascinating article by Professor Samuel Wang PhD.  It’s a good sober appraisal of this very real opportunity and it’s worth your time.  (I've included the directory of US Democratic Senators at the end of this.)


Constitutional Hardball: Can Senate Democrats Confirm Merrick Garland on January 3rd?

By Sam Wang. |  December 25th, 2016

On the New York Times opinion page, the editors suggest (“The Stolen Supreme Court Seat,” December 24th) that President-elect Donald Trump could nominate President Obama’s choice, Judge Merrick Garland, as a gesture of goodwill. I myself suggested this on CNN last month (that was the point, you guys, not the bug – go watch). This is unlikely, to say the least…but there’s still a long-shot way to get a vote on Garland on January 3rd. It involves playing Constitutional hardball. (also see petition)

Update: A reader quotes a former Republican Senate staffer who claims that the rules prevent this. I am skeptical of the source. But if objections are raised, they will surely take the form described.

In 2004, the legal scholar Mark Tushnet published a classic article called “Constitutional Hardball.” This article is a must-read for anyone wanting to understand the battles over how our national government works.  

In it, Tushnet points out that from time to time, an organized effort is made to change fundamental principles of how the branches of the U.S. government operate. In Constitutional hardball, the parties carry out maneuvers that are within the literal rules, yet violate longstanding principles that are followed by mutual consent, a.k.a. “norms.” As examples, Tushnet cites (1) Marbury v. Madison, (2) FDR and the New Deal, and (3) a period that began in the late 1990s and continues today. This last period coincides with the advent of our modern, polarized politics.

The ninth-seat vacancy on the Supreme Court – and twenty-five other languishing judicial nominations – exemplify this year’s round of hardball. 

Usually, Supreme Court vacancies don’t arise in the last year of a Presidency, because sitting Justices avoid retiring in such a year. 

But nobody chose for Justice Scalia to pass on when he did. Senate Republicans declined to take up Merrick Garland’s confirmation to the Supreme Court, leaving the Court with only eight justices for much of the last year. They cited a tradition of not considering Supreme Court nominees in the last year of a Presidency, but that “tradition” arises from retirement practices, not a principle of Senate function.

Progressive strategist David Waldman points out that Senate Democrats have an option for escalating this game of hardball. Waldman is no stranger to this kind of thinking: in 2013, he pushed Senate Majority Leader Harry Reid to adopt the “nuclear option” for judicial nominations. This is now called the Reid Rule.

Waldman points out that at noon on January 3rd, 34 senators leave office. At that point, Democrats will have a 36-30 majority – which constitutes a quorum. And the Senate filibuster rule might not carry over from the previous Senate. Waldman suggests that at this moment, the presiding officer, Vice-President Joe Biden, could recognize the top-ranking Democrat, Senator Richard Durbin, who could then nominate Judge Garland for a vote. Waldman has started a petition requesting that they do this.

This idea faces multiple hurdles. For one thing, the Senate parliamentarian would have to agree that the filibuster rule did not carry over from the previous Congress. That would be in keeping with the “dead hand” principle that a Senate should not be bound by previous Senate bodies. It is not clear that a move to vote on Garland would clear such a hurdle.

A bigger hurdle is whether Democrats have the boldness to attempt such a move. To some extent, party members adopt their tone from their leaders. Senate Democrats might have to push back on President Obama, who has made it clear that he seeks to make an orderly transition to the Trump Administration. But the roughness of the Presidential transition may give him second thoughts. Democrats may be bolstered by the fact that Obama’s net approval is quite high, while Trump’s net approval rating is the lowest of any incoming President on record.

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About the Princeton Election Consortium
This blog’s mission is to provide informed analysis of US national elections by members of the Princeton academic community. It is open to scholars in the Princeton area from all disciplines, including (but not restricted to) politics, neuroscience, psychology, computer science, and mathematics.
For now, much of the site’s information is about polling. As the campaign season progresses we will expand to other interesting topics, and expect for diverse contributions.

This blog began in 2004 as a meta-analysis directed at the question of who would win the Electoral College. Meta-analysis of state polls provides more objectivity and precision than looking at a single poll and gives an accurate current snapshot of the state of play. Over the course of the campaign, this site attracted over a million visits. In 2004, the median decided-voter calculation on Election Eve captured the exact final outcome (read this article and the follow-up). The 2008 calculation provided results based on decided-voter polling from all 50 states, and in the closing week of the campaign ended up within 1 electoral vote of the final outcome.

The Management

Prof. Sam Wang‘s academic specialties are biophysics and neuroscience. In these fields he uses probability and statistics to analyze complex experimental data, and has published many papers using these approaches. He is also the author of Welcome To Your Brain, a popular book about his field. 

He originally developed the Meta-Analysis in 2004 to help think about how to allocate campaign contributions. He was originally motivated by the fact that in a close race, one can make the biggest difference by donating at the margin, where probabilities for success are 20-80%. The Meta-Analysis has subsequently been found to be useful as a highly sensitive tracking tool over time. To read a discussion click here. In 2004, the Meta-Analysis of State Polls got tens of thousands of hits per day. He was helped that year by Drew Thaler.       Sam can be contacted as sswang at princeton dot edu.

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Without an outstanding public outcry, nothing is going to happen.

I myself cannot understand why demanding Merrick Garland confirmation isn’t on every progressive citizens and organization, not even the Democratic Parties seems to appreciation what an momentous horror it will be to give our our Supreme Court to agenda driven absolutists.  We need some checks and balances - that is supposed to be the American.

Why isn’t everyone demanding that Merrick Garland gets his Supreme Court vote???  

Phone calls from you and you, emails from constituents.  

Tens of thousands of protesters in Washington. DC on Jan 2nd 3rd when it can help make a momentous decision happen, rather than inauguration when all it can do is to impotently register our dissatisfaction. 

Democratic Senators of the 114th Congress

Boxer, Barbara - (D - CA)
Class III
112 Hart Senate Office Building Washington DC 20510
(202) 224-3553

Class I
331 Hart Senate Office Building Washington DC 20510
(202) 224-3841

Class III
261 Russell Senate Office Building Washington DC 20510
(202) 224-5852


Class III
706 Hart Senate Office Building Washington DC 20510
(202) 224-2823

Class I
136 Hart Senate Office Building Washington DC 20510
(202) 224-4041

Class I
513 Hart Senate Office Building Washington DC 20510
(202) 224-2441

Class II
127A Russell Senate Office Building Washington DC 20510
(202) 224-5042

Nelson, Bill - (D - FL)
Class I
716 Hart Senate Office Building Washington DC 20510
(202) 224-5274

Class I
330 Hart Senate Office Building Washington DC 20510
(202) 224-6361

Schatz, Brian - (D - HI)
Class III
722 Hart Senate Office Building Washington DC 20510
(202) 224-3934

Class II
711 Hart Senate Office Building Washington DC 20510
(202) 224-2152

Donnelly, Joe - (D - IN)
Class I
720 Hart Senate Office Building Washington DC 20510
(202) 224-4814

Class II
255 Dirksen Senate Office Building Washington DC 20510
(202) 224-2742

Class I
317 Hart Senate Office Building Washington DC 20510
(202) 224-4543

Class I
509 Hart Senate Office Building Washington DC 20510
(202) 224-4524

Class III
503 Hart Senate Office Building Washington DC 20510
(202) 224-4654

Class I
133 Hart Senate Office Building Washington DC 20510
(202) 224-5344

Peters, Gary C. - (D - MI)
Class II
724 Hart Senate Office Building Washington DC 20510
(202) 224-6221

Class I
731 Hart Senate Office Building Washington DC 20510
(202) 224-4822

Franken, Al - (D - MN)
Class II
309 Hart Senate Office Building Washington DC 20510
(202) 224-5641

Klobuchar, Amy - (D - MN)
Class I
302 Hart Senate Office Building Washington DC 20510
(202) 224-3244

Class I
730 Hart Senate Office Building Washington DC 20510
(202) 224-6154


Tester, Jon - (D - MT)
Class I
311 Hart Senate Office Building Washington DC 20510
(202) 224-2644

Heitkamp, Heidi - (D - ND)
Class I
110 Hart Senate Office Building Washington DC 20510
(202) 224-2043

Shaheen, Jeanne - (D - NH)
Class II
506 Hart Senate Office Building Washington DC 20510
(202) 224-2841

Booker, Cory A. - (D - NJ)
Class II
359 Dirksen Senate Office Building Washington DC 20510
(202) 224-3224

Class I
528 Hart Senate Office Building Washington DC 20510
(202) 224-4744

Class I
303 Hart Senate Office Building Washington DC 20510
(202) 224-5521

Udall, Tom - (D - NM)
Class II
531 Hart Senate Office Building Washington DC 20510
(202) 224-6621

Reid, Harry - (D - NV)
Class III
522 Hart Senate Office Building Washington DC 20510
(202) 224-3542

Class I
478 Russell Senate Office Building Washington DC 20510
(202) 224-4451

Class III
322 Hart Senate Office Building Washington DC 20510
(202) 224-6542

Brown, Sherrod - (D - OH)
Class I
713 Hart Senate Office Building Washington DC 20510
(202) 224-2315

Merkley, Jeff - (D - OR)
Class II
313 Hart Senate Office Building Washington DC 20510
(202) 224-3753

Wyden, Ron - (D - OR)
Class III
221 Dirksen Senate Office Building Washington DC 20510
(202) 224-5244

Class I
393 Russell Senate Office Building Washington DC 20510
(202) 224-6324

Reed, Jack - (D - RI)
Class II
728 Hart Senate Office Building Washington DC 20510
(202) 224-4642

Class I
530 Hart Senate Office Building Washington DC 20510
(202) 224-2921

Hatch, Orrin G. - (R - UT)
Class I
104 Hart Senate Office Building Washington DC 20510
(202) 224-5251

Kaine, Tim - (D - VA)
Class I
231 Russell Senate Office Building Washington DC 20510
(202) 224-4024

Warner, Mark R. - (D - VA)
Class II
475 Russell Senate Office Building Washington DC 20510
(202) 224-2023

Class III
437 Russell Senate Office Building Washington DC 20510
(202) 224-4242

Class I
332 Dirksen Senate Office Building Washington DC 20510
(202) 224-5141

Cantwell, Maria - (D - WA)
Class I
511 Hart Senate Office Building Washington DC 20510
(202) 224-3441

Murray, Patty - (D - WA)
Class III
154 Russell Senate Office Building Washington DC 20510
(202) 224-2621

Baldwin, Tammy - (D - WI)
Class I
717 Hart Washington DC 20510
(202) 224-5653

Class I
306 Hart Senate Office Building Washington DC 20510
(202) 224-3954


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