Not Quite #WhatTheyVotedFor

#Justice | #WhatTheyVotedFor

Let us start with Maura Dolan of the Los Angeles Times:

A three-judge panel of the U.S. 9th Circuit Court of Appeals declined early Sunday to immediately block an order from a federal judge in Washington that halted the travel ban.

Instead, the panel established a rapid schedule for written arguments.

A brief from the two states that challenged the ban was filed early Monday. The administration’s response was due at 3 p.m. Pacific time. A panel ruling could come anytime after that―most likely within a week, experts said.

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The three judges who happen to be sitting on the 9th Circuit’s motions panel this month and who will rule on the case are William Canby Jr., a President Carter appointee; Richard Clifton, appointed by President George W. Bush; and Michelle T. Friedland, appointed by President Obama.

Clifton is considered moderately conservative and the two Democrats are viewed as moderately liberal. The 9th Circuit is broadly viewed as the most liberal federal appeals court.

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If Trump loses, he could immediately go to the U.S. Supreme Court. Justice Anthony M. Kennedy, who handles matters from the 9th Circuit, would probably ask the other justices to weigh in.

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Erwin Chemerinsky, dean of the UC Irvine School of Law, suggested Sunday that the 9th Circuit was likely to rule against the Trump administration.

“Virtually every judge to consider the executive order has said that there is a substantial likelihood that it is unconstitutional,” Chemerinsky said in an email. “Both Republican and Democratic appointees have come to this conclusion. Having read some of the briefs in these cases, I think any court is likely to come to this conclusion.”

The New Mundane (Petty Grotesquerie)

There are days when we might simply shrug and say, “Yeah, it happens.” But, you know. This happened:

Sen. Orrin Hatch (R-Utah) hasn’t yet met with Supreme Court nominee Merrick B. Garland for what has been a long anticipated encounter between the former Judiciary Committee chairman and the federal appeals court judge he has long praised.

But when the meeting does happen, don’t expect Garland to succeed in convincing Hatch to support his nomination, because Hatch has already declared that it won’t.

“Like many of my Senate colleagues, I recently met with Chief Judge Merrick Garland, President Obama’s nominee to the Supreme Court. … Our meeting, however, does not change my conviction that the Senate should consider a Supreme Court nominee after this presidential election cycle,” Hatch wrote in an op-ed published on the website of the Deseret News early Thursday morning and later removed. It remains available in a Google database.

The headline for Mike DeBonis’ Washington Post report is straightforward: “Sen. Orrin Hatch reacts to meeting with Merrick Garland before it occurs”.

Look, the simple fact is that once upon a time politicians used to at least pay lip service to the notion of statesmanship. Certes, the Utah Republican knows this after thirty-nine years in the United States Senate.

It seems futile to complain about such petty grotesquerie; we probably ought to be thankful Republicans aren’t calling for Second Amendment solutions to the Garland nomination. Nonetheless, it’s worth reminding that the presidential contest is neither the only evidence of Republican unfitness to govern nor any manner of surprise. Republicans have labored hard to achieve such depths. The presidential contest is symptomatic. Orrin Hatch’s continued descent is emblematic.

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Image note: Senate Finance Committee Chairman Orrin Hatch (R-UT), left, is flanked by House Speaker Ryan (R-WI), right, while signing the American Manufacturing Competitiveness Act of 2016, on Capitol Hill, 18 May 2016, in Washington, DC. (Photo by Mark Wilson/Getty Images)

DeBonis, Mike. “Sen. Orrin Hatch reacts to meeting with Merrick Garland before it occurs”. The Washington Post. 26 May 2016.

The Republican Message

Let’s talk about messaging.

Okay, we get that President Obama is the big bad villain and all that, but am I the only person who noticed that the GOP “oppo dump” against Judge Merrick Garland, besides being utterly flaccid, is filed under “Hillary Clinton”?

(sigh)

Here. Consider this note, please, from Greg Sargent, offered a couple days before the president nominated Judge Garland:

Republican operatives will “vet that person and put their real record on display.” Ideally, of course, this is what would happen if the Senate were to hold hearings on that person. But that might afford the nominee a chance to directly respond to his or her Republican cross-examiners in a high profile setting (as opposed to only having Democratic groups mount all the pushback, which of course they will also do, once there is a nominee). Direct exchanges between the nominee and Republican Senators, alas, might reflect well on that person. And so the only “vetting” and examination of the nominee’s “real record” will be undertaken through the RNC and associated GOP-aligned groups.

That’s not meant as sarcasm. It’s the actual Republican party-wide position right now. Remember, Senate Republicans themselves have told reporters that they don’t want to hold hearings explicitly because it would risk drawing the wrong kind of media attention to the nominee, thus making it harder politically for GOP Senators — particularly vulnerable incumbents facing reelection in states carried by Obama — to oppose that person later.

It also seems a good time to reiterate Stuart Rothenberg’s recent reflection on this year’s U.S. Senate races. No, really. Trying to tie it all together is an exercise in futility, because it’s almost like a harm reduction scheme implemented in advance of scheduled self-harm. And, yes, that sentence is supposed to read so ridiculously; that’s kind of the problem.

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Image note: Detail of screenshot from GOP.com, taken 19 March 2016.

Republican National Committee. “Meet Merrick Garland”. GOP.com. 16 March 2016.

Rothenberg, Stuart. “Dem Senate Takeover Probable, If Cruz or Trump Nominee”. Rothenblog. Roll Call. 13 March 2016.

Sargent, Greg. “In Supreme Court fight, Republicans lead with their chins”. The Washington Post. 14 March 2016.

Not About Anything But Democrats, According to Republicans

“Naturally, I would like to have him treated fairly, but a lot depends on who’s elected, a lot depends on who’s going to be president.”

―Sen. Orrin Hatch (R-UT)

Via Reuters:

Two key U.S. Senate Republicans signaled they would be open to considering after the Nov. 8 presidential election President Barack Obama’s Supreme Court nomination of Merrick Garland, the centrist judge who was set on Thursday to begin meeting with senators.

The comments by Utah’s Orrin Hatch and Arizona’s Jeff Flake, members of the Judiciary Committee that would hold any confirmation hearings, came a day after Obama nominated Garland to the lifetime position on the high court to replace conservative Justice Antonin Scalia, who died on Feb. 13.

Senate Republican leaders have vowed not to hold confirmation hearings or an up-or-down vote on any Supreme Court nominee put forward by Obama, whose term ends in January. They want the next president to make the selection, hoping a Republican wins November’s election.

Flake said while Republican leaders were “fully justified” in delaying action on confirmation, if the Republicans lose the White House race the Republican-led Senate “ought to look at this nomination in a lame-duck session in November.”

And while it’s true that something goes here about the futility of predicting conservative behavior, it’s worth reminding that part of the reason for this is that even Republicans aren’t paying attention.

This is the problem: They’re not even trying.

Republican Justice (Maybe Mix)

Steve Benen, after reviewing the appalling stupidity of the Republican pitch against confirming a Supreme Court nominee, including their reaction to the nomination of Judge Merrick Garland, found himself adding a postscript:

Sen. Orrin Hatch (R-Utah), who just last week explicitly urged Obama to nominate Garland, said in a statement this morning that Garland’s nomination “doesn’t in any way change current circumstances” – which is to say, Hatch still supports his party’s blockade.

However, Hatch also added this morning, “I’d probably be open to resolving this in the lame duck.” Keep a very close eye on this, because it may prove to be incredibly important. As things stand, Senate Republicans don’t intend to reject Garland, so much as they plan to ignore him. His nomination won’t be defeated; it’ll simply wither on the vine.

But if Republicans fare poorly in November’s elections, don’t be too surprised if GOP senators declare, “Well, now that voters have had their say, we’re prepared to confirm Garland after all.”

The msnbc producer and blogger advises readers to, “File this away for future reference”, and it behooves us to do so. One of the blessings facing pretty much any president seeking a new Supreme Court justice, and especially Democrats as such these days, is that there is a plethora of qualified candidates. In the end, given all else, one wonders if perhaps the “moderate, inoffensive, broadly respected, 63-year-old white guy” is actually the sacrificial lamb.

Sad: Wasted Opportunities

The headline, from Reuters:

Top Republican sees bumpy Kagan court confirmation

And the lede:

Supreme Court nominee Elena Kagan will face tough questions at a Senate confirmation hearing because she has never been a judge and has no record of judicial opinions, a top Republican senator said on Sunday.

As if this is news.

With judicial appointments in general, the question is no longer whether or not the opposition will obstruct, but, rather, how they go about doing it. To the administration’s favor in the coming confirmation fight for Elena Kagan is her one great merit throughout—she is very good at appeasing conservatives.