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  • Why I am not worried about President Trump appointing judges.

    Posted by Lexington Green on February 13th, 2016 (All posts by )

    [While I was finishing this post, I saw the terrible news that Justice Scalia died. God rest his soul. The GOP Senate majority should not permit President Obama to replace Justice Scalia, and should slow-walk any appointment he may make until after January 2017. That empty seat will be and should be a campaign issue. It raises the stakes considerably for the next President.]

    The other day a friend asked me: “what kind of judges would Trump appoint?”

    I responded:

    “They will be the best, the smartest legal scholars we have, people who know the Constitution up and down, the whole thing, and especially our second amendment, which no one will touch, not while I am President, the second amendment is sacred, and they will be outstanding judges, judges who will be fair, but also do justice, and keep our country safe, so that criminals like the guy who killed Kate, beautiful Kate in San Francisco, people like that will go to prison for a long, long time, or back to Mexico, where they belong, if they are here illegally. And the judges I appoint will follow the law carefully, and they will always do what is good for America.  And I know some of the best people in the country who will advise me on which judges to pick, great lawyers, great trial lawyers, and I know lawyers who are great negotiators, the best in the country, some of these guys are killers, not nice guys, but tough, smart, incredible lawyers, and legal scholars, from top law schools, the best law schools, and they know who the best people are, not necessarily people you have heard of, but the best, and we will appoint amazing judges. Trust me, the American people will be very proud of the judges we pick.”

    This is of course a spoof of Mr. Trump’s speaking style.

    However, a little research discloses that my satire was pretty close to what he actually said when he was asked this question:

    “Well, first of all, we have a lot of judges that have to be appointed because we have a lot of openings in terms of judges. And I’m very happy about that, to be honest, because I think, you know, appointing judges is a very important and a very, frankly, a very, very important element of what we’re doing. … Well, I’m going to appoint conservative judges. I’m going to appoint people that have great reputations, that are great with the legal profession… I will study it carefully. I will work with people that I respect, conservative people, and we’ll appoint judges that will be good.”

    So, Mr. Trump has not yet developed a smoothly articulated public position on judicial appointment. Nonetheless, as I will show below, even these off-the-cuff statements provide a clear and favorable indication of what kinds of judges Mr. Trump will appoint if elected.

    The question of what kind of judges Mr. Trump will appoint is causing panic in some conservative circles. It is fair to say the foregoing answer, by itself, does not provide much reassurance.

    Mr. Trump has said very little about Supreme Court Justices, let alone appellate and district court judges, and only under questioning, not at his own initiative. During this election campaign he has focused on other issues.

    Judicial appointments are a somewhat wonkish concern. Most people don’t know that much about it, or understand it, or care about it. The kind of people who focus on judicial appointments are people with a strong focus on a single issue, which might be advanced or threatened depending on who is on the Supreme Court. People with very strong ideological beliefs also care very much about Supreme Court appointments.

    For example, people who are single issue gun rights voters care very much about who is on the Supreme Court. Trump has been very strong on this issue. He talks about it a lot. One of his five published position papers is on this issue. It appears that we can safely assume that a President Trump will not nominate anyone for the Supreme Court who is not strong on the Second Amendment.

    Another significant group of single issue voters are pro-Life voters. This group cares intensely about who is on the Supreme Court. Trump has said on several occasions that he is pro-Life. Abortion is a not a focus of his speeches, but he has been consistent on the topic during this presidential race. In January he published an op-ed entitled My vision for a culture of life: “Let me be clear — I am pro-life. I support that position with exceptions allowed for rape, incest or the life of the mother being at risk.” Note that he does not say “life or health” — which is considered no limitation at all by pro-Life voters, since anyone seeking an abortion will always able to get a doctor’s note. So Trump’s public statement claiming to be “pro-Life” is solidly within the Conservative mainstream, where the centrist position is typically summarized as precisely this “pro-Life with exceptions”. Trump is articulating what is probably the rightward-most electable position on the subject.

    But pro-Lifers are not convinced. Trump, as recently as 1999, publicly said he was pro-Choice, though as early as 2000 he publicly stated his opposition to partial birth abortion. His sister is a judge who is pro-Choice, and whom he has publicly said in August of 2015 that she would make a “phenomenal” Supreme Court justice.

    In 2011 Trump made a public declaration that he had changed his mind on the issue and was now pro-Life. Pro-lifers apparently reject this story of personal growth and conversion on the issue. Instead they, rather uncharitably, assume Trump must be lying. They see these comments as merely a cynical ploy by Trump to bamboozle them into voting for him prior to his contemplated but abandoned 2012 presidential run.

    Also, pro-Lifers are culturally conservative generally, and they have a gut-level dislike of a guy who was married three times, who is not personally religious in any way that they recognize or respect, and who is part of the vulgar Hollywood celebrity culture which they despise. Trump’s demeanor and the milieu he comes from are repellant to many pro-Life voters, without regard to his merits otherwise. Finally, pro-Lifers are frustrated with Republican candidates who talk their talk but, in their view, never do anything for their cause. They think Trump will be at least as bad, since he has not shown a long and ardent commitment to the issue.

    In short: Pro-Lifers don’t trust Trump.

    Are pro-Lifers wrong about this?

    Can we assess Trump’s likely judicial appointments, to see if their worries are justified?

    If we disassemble his response quoted above we can cull out some themes.

    Trump said he is glad he will be able to appoint a lot of judges, and that is a “very, very important element of what we’re doing.” So, judicial appointments are an important issue for him. Why this is an important element of “what he is doing” is an interesting question. Appointing conservative judges may be a goal in itself, if only to satisfy an important consituency. However we can read this more deeply as meaning that his program will be controversial, it will be challenged in court, and it will require support from the judicial branch. Probably both are true.

    “I’m going to appoint conservative judges.” That is an unambiguous, simple, declarative sentence. Judicial appointees must have the right ideological orientation, they must be conservative, or Trump will not nominate them. Notably, Trump has specifically said that Chief Justice Roberts was a disastrous appointment, that he is not conservative enough, and that Roberts’ Obamacare ruling was “disgraceful”. Trump has singled out Clarence Thomas, whom he described as “very strong and consistent”, as the kind of Judge he wants.

    Whatever Conservatives may make of this, people on the left are terrified by it, which is a good sign.

    “I’m going to appoint people that have great reputations, that are great with the legal profession…” So, conservative potential appointees, will then be assessed for competence and good reputations. That should not be controversial.

    “I will study it carefully.” Trump is saying that he does not have expertise in this area, but that he will study it sufficiently to make sure the appointments meet the two criteria listed above.

    “I will work with people that I respect, conservative people, and we’ll appoint judges that will be good.” This tells us how Trump will “study” the issue. He will get good advice and act on it.

    These are the steps that any conservative Republican president would actually follow, even though they feign omniscience in answering questions from the media.

    Trump’s method in business is to set a policy direction, get top-notch subordinates, let them do the job, intervene only when necessary, hold his subordinates accountable for results, reward success and penalize failure. While he is boastful about his skills, he is also humble about his limits. He knows the scope of his own domain expertise, and hires people to advise him in other areas. We have to assume that he will do the same thing with regard to judicial appointments. The foregoing sketch of a program for making judicial appointments is consistent with his usual practice, is reasonable generally, and is probably what he will actually do.

    None of the foregoing scares me, as a life-long conservative.

    But, let’s be cynical. Let’s assume Trump is dishonest, which I do not for a moment believe. Let’s assume that Trump really is not personally, subjectively pro-Life, and is lying about that, which I also find unlikely. Let’s assume he would secretly prefer to appoint less conservative judges than he claims, even pro-Choice judges.

    Even if all of this theoretical dishonesty shaped Trump’s deep motives, you have to look at the cost-benefit calculus he faces to decide if he would ever act on it.

    You always have to look at the incentive structure to predict conduct.

    Trump has a practice during this presidential campaign of saying what he intends to do, and repeating that message in simple phrases, over and over, like a mantra. We can reasonably assume that his policy priorities once in office will be the ones he is always talking about on the campaign trail: border security, trade, military strength, VA reform, healthcare reform, tax reform, Second Amendment rights.

    That is a heavily loaded plate. If Trump can make progress on all of those he will be a historic president. And he clearly wants to be. Like him or lump him, Trump does not think small. He will swing for the fences, and his presidency will be “yuge.”

    Though a lot can be done with the President’s “pen and phone”, made famous by our current President, Trump absolutely needs major, fundamental legislation to make the changes he is proposing. Therefore Trump absolutely must work with Congress, and make deals with both houses of Congress.

    To accomplish his ambitious goals, Trump absolutely must have the strong and consistent support of a GOP Congress. And the GOP majority Senate is unlikely to approve judges who are not conservative, and will object if Trump nominates any judges who are not conservative.

    Trump would be sacrificing, or at least risking, his main priorities if he got into a conflict with the GOP Senate majority over judicial appointments.

    To the contrary, there is every reason to believe that Trump will use judicial appointments as a way to gain credibility with ideological conservatives, many of whom are otherwise disinclined to like him or support him. If he does what he says, and he usually does, Trump will seek expert advice, and identify and appoint conservative, competent judges, with Clarence Thomas as a model. Thanks to the Federalist Society and its work for many years, there exists a deep bench of conservative judges and lawyers to choose from. Conservatives will be elated if this happens.

    Further, Trump is a deal-maker. District court appointments are typically made at the suggestion of the Senators from the state where the district is located. Appellate court appointments are similar, with the Senators heavily involved in the choices, though there is sometimes ideological controversy with regard to appellate court appointments. That is the existing process and Trump is not likely to interfere with it. He will thereby gain bargaining points with the various Senators, which will facilitate deal-making on other matters.

    On Supreme Court appointments, Trump will likely see at least four things. First, these appointments are always historic milestones, they are controversial and contentious, and he will give each one of them a lot of attention and exercise great discretion in his choice. Second, a president’s long-term legacy is shaped by his Supreme Court appointments, and a good appointment will help “make America great again” for many years into the future. Third, Supreme Court appointments are choices which a President Trump completely controls, which give him the chance to gain substantial credibility and support from factions who are not his strongest supporters, at no financial cost whatsoever. Fourth, the people who will hate conservative appointments to the Supreme Court are already Trump’s opponents, and he will gain nothing by placating them. This set of incentives suggests that he will consult with the GOP Senate leadership, identify Supreme Court nominees who will be conservative and competent, who are likely to bring luster to his presidency, and who will likely be approved by the Senate, and appoint them.

    Trump would face a howling gale of angry opposition if he tried to appoint a pro-Choice Supreme Court justice, for example. There is no reason to think Trump would gratuitously embark on a full scale war with the GOP Senate majority on an issue which is not one of his core policy goals.

    This leads me to conclude:

    Trump will appoint conservative, competent Supreme Court justices, without regard to any contrary subjective beliefs he may have, because that is the pragmatic political choice necessary to accomplish his goals.

    And if Mr. Trump really is pro-Life, and a conservative, in his own mind and heart, that only strengthens this conclusion.

    My hopeful prediction is that the foregoing process will lead a President Trump to appoint conservative, competent judges most of the time, and to make Supreme Court appointments which are acceptable to the GOP Senate majority and hence to most Conservatives, including pro-Life voters.

    In short, I have no fear whatsoever about a Trump presidency on this particular score, and other conservatives should not either.

    UPDATE: Trump mentioned two judges in the recent debate as possible Supreme Court appointments: Diane Sykes and /William Pryor. Both would be good appointments. His comment about Sykes was: “I think there are some great people out there, Diane Sykes from Wisconsin, from what everybody tells me, would be outstanding.” This shows that my analysis is correct. Trump will seek expert advice on court appointments and appoint conservative judges.

     

    49 Responses to “Why I am not worried about President Trump appointing judges.”

    1. chuck Says:

      > This is of course a parody of Mr. Trump’s speaking style.

      Trump is a big mouth and not much else. How he would appoint a wonderful justice escapes me, it’s not like he has any advisers.

    2. Robert Schwartz Says:

      I understand that Trump’s sister is a Federal judge, and that she is a liberal.

    3. Robert Schwartz Says:

      Lex: This post falls into the category of whistling past the graveyard. I am not so sanguine.

    4. Jonathan Says:

      The GOP Senate majority should not permit President Obama to replace Justice Scalia

      What are the odds?

    5. morgan Says:

      You can bet Obama will nominate an extreme leftist to the Court. And his propaganda arm in the media will actively push his choice. This seems like a good payback time for Republicans to “Bork” Obama’s choice. I find it hard to imagine the spineless Republican Senators standing up to that media pressure and abuse, thus Obama might easily be able to “transform the Court into a leftist rubber-stamping machine for liberal activity. I sincerely hope I’m wrong, but I’m not optimistic. Dark days are indeed ahead for this tattered republic.

    6. Grurray Says:

      What are the odds Rubio shows up for the vote?

    7. Mr Black Says:

      While the appointment is a very serious business within a narrow scope, in the long term it is essentially meaningless. The republic is approaching bankruptcy, its institutions are almost all totally corrupted by and infested with cultural Marxism, its “elite” are globalist anti-Americans and the people themselves are turning towards naked socialism to cure their ills. If we could clone Scalia and put him back on his chair, would that change any of those other things? Not in the least. We are on a downward trajectory because the culture has been poisoned with leftism in its many forms. A left wing justice might help us sink a little faster but we are already half way under water.

    8. Michael Hiteshew Says:

      The GOP should just dig and refuse to confirm a new justice until after the election. Let the media scream, they’re going to scream anyway and the indicators are they American people have largely wised up to their antics. Hold the line. This is how you win.

    9. Michael Hiteshew Says:

      Mr Black, it ain’t over yet. This is no time to quit.

    10. PenGun Says:

      Ya know I like The Donald. He’s brash, a bit of an asshole but he’s direct, says what he thinks, which can sometimes be a bit too revealing, but basically honest. A crazily entitled guy, he’s got some Kanye West in him for sure, but some talent too.

      I do like Bernie and would be happy if he was elected but I don’t think anyone can beat Hillery, with the people that matter, on her side.

    11. Lexington Green Says:

      One can always count on Chicago Boyz readers to helpfully tell us why America is already irreparably and hopelessly doomed, and to just give up.

    12. Whitehall Says:

      A number of Democrat senators are up for re-election this year. The ones on the margin will hate to have to vote on a new judge before the election. Trump is showing great strength with his “kick the bums out” theme. Tight contests in Colorado, Maryland, and Nevada are plausible, just to name 3.

      My guess is that enough Democrat senators will want to avoid confrontation before the election which will make it easy for McConnell to stall. There will be cries of a “do nothing” Congress, just like in 1948, but it won’t resonant except for the Far Left.

      I think Lex’s analysis of Trump’s political tactics is very sound. I doubt the Left will have any bargaining chips big enough to sway Trump from appointing mostly conservative, Constitution-respecting judges.

      But I hate the continued breakdown of “Pro-Life” and “Pro-Abortion/Rights” – since I’m neither. The real issue before the Court is federalism. SCOTUS erred in decreeing from the bench that ALL states will allow abortion in direct violation of the 10th amendment. This is really an issue reserved to the states to decide under their police power. Some states will be wide open – like California – while others – like Mississippi – will have much tighter laws.

      Rest in peace, Justice Scalia, although I know you loved the fight, and we thank you for that.

    13. Michael Hiteshew Says:

      McConnell shouldn’t need any reason to stall other than the R’s control Congress and they’re not going to vote until after the election. Period. The left will say, “Unless you do what what we want we’ll scream and cry!”. The proper response is, “Go ahead.”

    14. Lexington Green Says:

      Whitehall, I wrote this in response to the concerns of certain pro-Life friends, hence the focus on that issue.

    15. Mike K Says:

      “The GOP Senate majority should not permit President Obama to replace Justice Scalia

      What are the odds?”

      They will not allow a vote. Abe Fortas is a precedent. If the Democrats scream really loudly, waive the filibuster rule and vote down the Obama nominee. They do have a majority and Democrats did the same thing to Miguel Estrada so as to deny Bush the first Hispanic justice. Estrada was nominated to the DC Appeals Court as preparation for the next USSC vacancy.

      Trump is a cipher in many areas. I just believe that anything is better than what Hillary, or god forbid, Bernie would nominate.

    16. Lexington Green Says:

      The Democrats, and President Obama in particular, are entitled to zero deference on this. Obama is the president who said that he has “a pen and a phone” and didn’t need to deal with Congress at all. The message from President Obama was that he would do whatever he wanted, up to the limits of what he could get away with. The Democrat congress passed Obamacare on a party line vote, which is unprecedented for a law which had such a massive impact on the country. They did it because they could. That is now the standard. Obama and the Democrats chose it. They now have to live with the consequences.

    17. Mike K Says:

      Obama was giving a eulogy on Scalia a little while ago. I assume that is the opening gambit in trying to argue that he is “Bipartisan” and the GOP should just go along.

      I can’t watch the debates, at least in part because of the idiotic cheering every speaker.

    18. Robert Schwartz Says:

      “One can always count on Chicago Boyz readers to helpfully tell us why America is already irreparably and hopelessly doomed”

      “As defense analyst Colin Gray writes in a recent book about the near-term possibilities of major conflict, ‘Another Bloody Century’*, when considering optimism and pessimism, ‘optimism is apt to kill with greater certainty.'”

      — “Fear of China” by Robert D. Kaplan in The Wall Street Journal, on page A14, on April 21, 2006.

      * ISBN 0297846272

    19. Robert Schwartz Says:

      I am sure that Obama will nominate some communist who is a certified triple minority, e.g. gay, black, transsexual. The media will then lumber the Rs as racists and homophobes for opposing zir.

      If there is an over/under on the Senate Republican’s holding out, I will take the under. They are gutless swine.

    20. Lexington Green Says:

      The Kaplan quote is off point. It is about being alert and prepared. The pessimism of too many of our readers counsel giving up because resistance and capitulating because there is no hope. It is debilitating and gives aid to the enemy.

    21. Grurray Says:

      My wife had the debate on. I was trying to watch the Blackhawks game on the computer while also skimming through Scalia’s dissenting opinion on the 1992 Planned Parenthood case.

      I occasionally looked up at the political wrestling match. It wasn’t pretty. I’ve been generally sympathetic to the Trump movement, but he went bananas tonight. His vehement criticism of Bush 43 was astounding. I can see how he holds him accountable for failures in Iraq (athough many members here have presented a reasoned defense), but blaming Bush for 9-11 is crazy. Not mentioning Obama’s blame in the collapse of the Middle East is bizarre.

      Most disappointing, ironically, was his defense of Planned Parenthood, saying despite their abortions they still do “wonderful things” for women’s health. If really he thinks the country is worse off now that Justice Scalia is gone, I would hope he would believe the same about Planned Parenthood and their fetal body parts trafficking.

      Although it was unfair that the audience was again packed with hecklers yelling at him, this was still Trump’s worst debate. It seemed in the heat of the moment he got rattled and fell back on his pre-conversion proclivities.

    22. Mr Black Says:

      The problem with continuing to fight, is that we’ve already lost. We’re the stragglers from a once great army making occasional forays out of the mountains to win the occasional PR victory before we are forced to retreat back into isolation. The left has utterly beaten us in the culture war. Now I don’t mean to say that we cannot in future rise up again, we can, but it WILL NOT be achieved by using the same methods we employed which lead to our defeat in the first place.

    23. Lexington Green Says:

      Mr. Black let’s start rising up again using new methods immediately.

    24. Mr Black Says:

      I don’t claim to have the answers, but a battle cry of “let’s do what failed last time, only more!” has one or two problems I can see right away. This is one reason I am liking Trump so much. I couldn’t care less if he is a Democrat on policy, the Democrats are winning on policy even when the GOP is in charge, so it’s meaningless. But he is a destabilizing force and offers the chance of the unexpected. That might give us a window into how to fight back and a foot in the door as our start. Nominating the same old GOPe people to fail us in the same old GOPe way? I think we’ve ridden that failure horse enough times.

    25. Robert Schwartz Says:

      “The pessimism of too many of our readers counsel giving up because resistance and capitulating because there is no hope.”

      “Per me si va ne la citta dolente,
      per me si va ne l’etterno dolore,
      per me si va tra la perduta gente.
      Giustizia mosse il mio alto fattore;
      fecemi la divina podestate,
      la somma sapienza e ‘l primo amore.
      Dinanzi a me non fuor cose create
      se non etterne, e io etterno duro.
      Lasciate ogne speranza, voi ch’intrate.”

      “Through me the way to the city of woe,
      through me the way to everlasting pain,
      through me the way among the lost.
      Justice moved my maker on high.
      Divine power made me,
      wisdom supreme, and primal love.
      Before me nothing was but things eternal,
      and eternal I endure.
      Abandon all hope, you who enter here.”

      http://etcweb.princeton.edu/dante/pdp/
      Divine Comedy by Dante Alighieri,
      Book Inferno, Canto III: 1-9

    26. TangoMan Says:

      I can see how he holds him accountable for failures in Iraq (athough many members here have presented a reasoned defense), but blaming Bush for 9-11 is crazy.

      Not crazy at all. During the Clinton Administration there was the practice of racially profiling Arab Americans. Bush pledged to end the practice and did. From the ABC transcript of his debate with Gore:

      And secondly, there is other forms of racial profiling that goes on in America. Arab-Americans are racially profiled in what’s called secret evidence. People are stopped, and we got to do something about that. My friend, Senator Spencer Abraham of Michigan, is pushing a law to make sure that, you know, Arab-Americans are treated with respect.

      So racial profiling isn’t just an issue at the local police forces. It’s an issue throughout our society. And as we become a diverse society, we’re going to have to deal with it more and more.

      I believe though — I believe, sure as I’m sitting here, that most Americans really care. They’re tolerant people. They’re good, tolerant people. It’s the very few that create most of the crisis. And we just happen to have to find them and deal with them.

      And here’s the part which ties together Bush’s irresponsible feel-good policy and 9/11:

      On September 11, 2001, Tuohey, a ticket agent for U.S. Airways, checked in terrorist Mohammed Atta for a flight that started a chain of events that would change history.

      Tuohey was working the U.S. Airways first-class check-in desk when two men, Atta and his companion Abdul Azziz-Alomari, approached his counter. From all outward appearances, the men seemed to be normal businessmen, but Tuohey felt something was wrong.

      “I got an instant chill when I looked at [Atta]. I got this grip in my stomach and then, of course, I gave myself a political correct slap…I thought, ‘My God, Michael, these are just a couple of Arab businessmen.'” . . .

      With security alerts at a normal level, and no solid security protocol in place, Tuohey gave them their tickets, but, going with his gut instinct, he refused to give the men boarding passes for their connecting flight, forcing the pair to go through another security check-point in Boston.

      “I just had the feeling I was looking into the face of evil. They were the deadest eyes I’ve ever seen. I mean, it was just an unmistakable face. Cold,” says Tuohey.

      When Tuohey first heard about a plane hitting the World Trade Center, he thought it was just an accident. When the second plane hit, he knew his instincts had been correct. “My first reaction was, ‘I was right. This guy was a terrorist.'”

      All Bush needed to do was to keep the Clinton-era policy in effect but he purposely set out to strip authorities of the ability to profile. That policy of lack of profiling directly intersected with Atta. That’s a pretty damn direct link.

    27. dearieme Says:

      The case against Bush because of his ill-judged abolition of profiling seems to me to be weakened by the Tuohey tear-jerker.

    28. TimL Says:

      McConnell has misread the situation as usual. Washington Examiner is already out with a story on how Obama could use a recess appointment to fill the post. Eisenhower appointed Brennan, probably the most left wing judge in history, by this method in order to secure moderate votes for his second term. There is precedent. By stating outright that Obama’s nominee won’t be confirmed, McConnell gives Obama the excuse to use just this method.

      They should have just said they will vet each nominee as usual and then left it in committee without comment. That would have removed the excuse for a recess appointment.

    29. Grurray Says:

      Despite what he said, Bush didn’t actually change any policy nor was any law passed before 9-11. Nothing changed between January 2001 and September 2001.

      Had Gore been elected, 9-11 would have still occurred. Had Clinton been elected to a third term, 9-11 would have still occured.

      Bush did ban racial profiling in some federal agencies in 2003. You can add that to complaints about his handling of the war on terror/Iraq/Afghanistan, but you can’t blame him for 9-11.

    30. Whitehall Says:

      A recess appointment to the Supreme Court? I didn’t think that could happen but maybe you’re right.

      OMG

    31. Michael Hiteshew Says:

      From Jonathan Adler’s piece in the WaPo:

      One other nomination worth mentioning is that of William Brennan to replace Justice Minton. This nomination is potentially significant in several ways. First, Minton announced his intention to retire late in an election year, on September 7, 1956, due to poor health, and left the Court several weeks later. President Eisenhower then placed William Brennan on the Court with a recess appointment, to prevent any vacancy. After the election, in January, President Eisenhower nominated Brennan, who was then confirmed in March by a voice vote. As David Bernstein notes in this post, Eisenhower’s use of a recess appointment prompted the passage of a Senate resolution against such appointments in 1960.

      Seems to me a resolution is posturing, not law.

    32. Mike K Says:

      ” The pessimism of too many of our readers counsel giving up because resistance and capitulating because there is no hope. It is debilitating and gives aid to the enemy.”

      I recall reading that George HW Bush complaining in September 1992, “Am I the only one here who believes I can still win this thing ?” I think it was in Cheney’s memoirs. He was the only one.

      The Brennan precedent is disturbing but the 1960 Senate Resolution may be enough to stop Obama.

      Also Eisenhower was re-elected. A recess appointment ends when the Congress term ends. I suspect such an appointment in defiance of the Senate by a lame duck would spark a revolution. Maybe even Abbot’s Constitutional Convention of states.

    33. Robert Schwartz Says:

      The Senate can prevent a recess appointment by not recessing. They do that by running proforma sessions ever couple of days. There was a SCOTUS case on that last year.

      I don’t think that Hussein will do that. It would be aggressive and put the onus on him. He would then be the subject.

      Bama wants to make the racism, homophobia, and radicalism of the Republicans the subject. He can do that as I said above: I am sure that Obama will nominate some communist who is a certified triple minority, e.g. gay, black, transsexual. The media will then lumber the Rs as racists and homophobes for opposing zir.

    34. Mike K Says:

      Trump is now walking back some of his comments from last night on Meet the Press. I think he realizes it was a mistake. He now is saying “They should have known.” That is not saying Bush was “lying.”

    35. chuck Says:

      > Trump is now walking back some of his comments from last night on Meet the Press.

      So he’s lying for personal gain. What’s new?

    36. Mike K Says:

      “So he’s lying for personal gain. What’s new?”

      Chuck, we know your feelings and your opinions are taken with that in mind.

      All politicians lie and that is why we have Trump.

    37. brer rabbit Says:

      Obama will nominate Al Sharpton. The GOP will refuse to approve.

      Obama will shut down the government, close down national parks, Obamacare and stop mailing out SS checks.

      The media will rise up in righteous wrath. There will be riots in the 20 largest cities and there will be a national police strike. An executive order will prohibit selling guns and ammunition to White non-muslems.

      Congress will approve Sharpton and grant advance approval blank checks for 4 more seats.

      Obama will be acclaimed President for Life. He will be praised by the 4 networks, the news media, and the Republican and Democrat Party establishment as America’s savior.

      There will be show trials.

    38. Grurray Says:

      This from Josh Blackman –
      no SCOTUS nomination in a presidential election year with a divided government (different parties controlling White House and Congress) has been approved since 1880. It isn’t like Obama to know or care about precedent or tradition, but Josh believes the seat will stay vacant.

      In 1880, Republican Rutherford B. Hayes nominated William Burnham Woods, and he was confirmed by a Congress dominated by southern Democrats. Woods was an Ohio Democrat before the war and an Alabama Republican after, so he was a compromise which ensured his confirmation.

    39. Mike K Says:

      “The Senate can prevent a recess appointment by not recessing”

      They recessed last Friday until Feb 22. If Obama moved fast, he could do it.

      Revolution follows. I don’t know what he will do but he could do a recess appointment. Would anyone (except Sharpton) accept it ?

    40. Whitehall Says:

      SO no recess appointment but Obama’s choice stalls. Then Ginsberg retires or dies, leaving TWO vacancies.

      The plot thickens….

    41. PenGun Says:

      There is a problem with just blocking any nomination. The present split is 4/4 right/left and they will try the upcoming cases. If no replacement appears it will be much more difficult, than it was before, when you had a 5/4 right/left split, to get results the right can live with.

      He has you going and coming.

    42. Anonymous Says:

      It seems to me that a key assumption concerning The Donald is that he has core goals that correspond to this populist rhetoric he is currently espousing. Since his rhetoric is inconsistent, general and mostly emotive, why do we assume it is anything but the calculated trappings of someone in love with himself who is seeking to increase his personal power, wealth and acclaim? He has been a crony capitalist his entire professional life. Perhaps this is just his switching to the supply side.

      I personally have zero confidence that he means or believes in much of anything he is spouting. Perhaps massive trade restrictions, which are potentially worth huge, concentrated economic rents and thus in high demand. I’m pretty sure he already knows how to work the insider angle to cash in big time.

      If he has any deeply held political or ideological beliefs, they are likely national socialist/ crony capitalist. Where that takes him as president is difficult to predict, but it won’t be to a smaller, less intrusive government with less pandering to those seeking governmentally generated economic rents.

      It doesn’t figure that he will appoint any Supreme Court justices likely to curb his own power and schemes. I can’t think of any billionaires that ever think they have enough of anything. Is The Donald one who thinks he has enough? I suspect not, no matter what he says or will say to assert that he does. Nothing in his history indicates he is trustworthy, a servant leader or transparent. Simply put, I don’t trust him because he has always been in business for himself and willing to say or do whatever it takes to realize his personal ambitions. Additionally, I believe him to be emotionally unstable and subject to anger and using vicious personal attacks. There are many wells that can be poisoned by a president with such personal traits. If you think Barry has been constitutionally unfit (no pun intended) for those same reasons to hold the position, then so is The Donald.

      While I would take my chances with him rather than the Hildabeast or Bern Down Sanders, we have better choices that might actually make a heroic attempt to start turning the ship.

      Death6

    43. Jonathan Says:

      This is a good framing of the central issues:

      http://libertyunyielding.com/2016/02/08/the-candidates-and-the-state-of-the-union-in-february-2016/

      But Trump is not a systematic political thinker either. He doesn’t have the temperament or perspective for wrestling, in a wise and serious way, with the real problems now destroying our republic, which are precisely those moral problems of government size and purpose. He will instead try to simply set rules – without addressing the underlying, government-caused conditions that are a political nightmare to address – and demand that everyone live by them.
       
      That’s what a CEO would do to manage his enterprise. And that’s great for a CEO, whose responsibility is to investors and shareholders for the return on private capital. You take the conditions that are too hard to change as givens, and find ways to make money anyway.
       
      But that’s not a restoration of principled, ordered liberty, which is what the business of our government should be. It’s not what America needs. America needs to change in ways different from how a Trump presidency would change us.

    44. Mike K Says:

      “we have better choices that might actually make a heroic attempt to start turning the ship.”

      I don’t know how this would happen. I am very pessimistic about the future anyway.

      I suspect that Trump, if he does not blow himself up with another exhibit like last Saturday night, would concentrate on the two main themes he has outlined, which are immigration and trade restriction. The Muslim thing would also be a feature.

      Foreign policy has been pretty much preempted by Obama’s disastrous behavior and the Russian and Iran moves. We are in uncharted waters.

      As far as a Democrat win, I fall back on Theodore Dalrymple’s advice on corruption.

    45. Grurray Says:

      “He has been a crony capitalist his entire professional life”

      I agree that he’s on thin ice with his views on eminent domain. However, there was more to the story of the much publicized widow in Atlantic City who took on Trump. He originally offered the woman 8 times what her home was worth.

      She was sued for her home, but she was able to get her day in court and keep the house to use for whatever purpose she wished, which apparently was providing room and board for crack heads. That’s Atlantic City for you.

    46. Mike K Says:

      Trump is going off at Cruz today and sounds like he fears losing in the SC primary.

    47. Michael Hiteshew Says:

      While I would take my chances with him rather than the Hildabeast or Bern Down Sanders, we have better choices that might actually make a heroic attempt to start turning the ship.

      I agree. I think Carly Fiorina was perfect for the job. She got no traction, despite constantly impressing at the debates and having a great platform. I think the spoiling attacks that were run against her very early did a lot of damage to the perception of her with the public.

      Next up is Cruz, who understands the problems to a large degree and will, I think, make an effort to address the underlying issues. Then there’s Trump, who I will accept if I must.

    48. Whitehall Says:

      Just got my absentee ballot from Florida yesterday for the Republican presidential primary.

      Interesting the order.

      At the very top of the list of 13 is Jeb Bush.

      At the very bottom of the list is Donald Trump.

      Funny that. Of course it could have been in order of filing but it looks just too convenient.

    49. Lexington Green Says:

      “…a restoration of principled, ordered liberty, which is what the business of our government should be…”

      There is no reason to think that more than a fraction of voters would ever know what that means, or care about it.

      They want jobs, they want public safety, they want to be able to speak freely without worrying about PC, they want to see their government concerning itself with their safety and welfare, they want to wage wars that make sense and win them, or not wage them at all. They want a rejection of the status quo that is not working. Trump and Bernie each promise their own versions of that.