Democrats must filibuster any nominee who is not Merrick Garland.

[athena]

This has to be the new meme.

Voting to confirm anyone but Merrick Garland means allowing the Republicans to get away with murder. It sets a horrible precedent of the party that controls the Senate subverting the system to take over all three branches of government. The only way to undo the damage done to the Constitution at this point is for the president to nominate Garland and for the Senate to confirm him. A presidential president -- a responsible, adult president who cared more about the health of this country than about himself and the political designs of his party -- would have nominated Garland. In fact, I am certain that Hillary Clinton would have nominated Garland for this reason.

Remember: the Constitution does not say that the president should nominate someone "in the mould of" the retiring or deceased justice. If that were the case, the court would never change. The Constitution was designed to allow the Supreme Court evolve with the will of the people. The will of the people in 2008 and 2012 was to elect President Obama. Merrick Garland was President Obama's choice. The only person who can replace Antonin Scalia is Merrick Garland.

Please call your senators first thing tomorrow morning and demand that they declare that they will vote to confirm Garland, and no one else but Garland. If Trump refuses to nominate Garland, we must wait until 2018 or 2020 if necessary, and put Garland in there.

Please don't give in to this. Call your Senators. Get this idea out there.

[Amaryllis]

1. MErkley has been saying this all along. He is asking we his petition to the senate here:

http://www.jeffmerkley.com/petition/oppose-trump-scotus-nominee/e/

[athena]

4. Thank you. Just signed it. We must make sure

he's not the only Senator saying this. This is what everyone should be saying, not just one or two people. Instead, all I hear is "Gorsuch is very much in the mould of Antonin Scalia".

[uponit7771]

2. +1, Normalizing what Turtle McFuckLips and crew did will be horrible

[bhikkhu]

3. Or no new justices at all

I'd rather see it go down to 7, or 5, than see Bannon's picks disgrace the tradition.

[athena]

6. Demanding that he nominate Garland would make the point better.

Otherwise, Democrats get called obstructionists (which apparently is only a bad thing when Democrats do it). I heard a Republican Senator say on NPR today that letting the seat stay empty is a disservice to the American people.

Democrats in the Senate should have been saying all day today that Trump must nominate Garland. I have not heard anyone say it. These people (with a few exceptions) don't have a spine. We have to make sure they grow one.

[mnhtnbb]

5. Signed. Calling two NC a$$hole Senators waste of time.

[athena]

8. I would not assume that.

When you call and speak to a staffer, your dissent gets noted. If the phone lines get flooded, they realize they're doing something very unpopular with their constituents. Check this out:

http://www.dailykos.com/story/2005/2/10/91524/-

and this:

[octoberlib]

7. Josh Marshall of TPM thinks so, too

Link to tweet

Won't the GOP always threaten to go nuclear every time the Dems want to filibuster ANYTHING? What use is it then? Let the GOP own this fucking trainwreck. This nominee is horrible.

[athena]

9. I agree completely.

The filibuster is of no value if you don't use it. And if you use it and lose it, it's no worse than if you didn't use it.

Even if it were a more moderate nominee, the fact that it is not President Obama's choice would make it a subversion of the system. It has to be Merrick Garland.

[tritsofme]

10. Your OP seems to exist in a bubble where Republicans could not invoke the nuclear option.

Their majority simply won't allow Senate Democrats to hold the seat open for two years, they would change the rules, end the filibuster, and confirm their nominee by majority vote.

As a consequence, Democrats would go into a potential Ginsberg vacancy completely irrelevant to conversation, because we wanted to make a symbolic but futile protest on the Scalia seat. We only get one bite at the Supreme Court filibuster apple, even if it proves futile, I'd rather spend it on a vacancy that alters the ideological composition of the Court.

[athena]

12. What use is a filibuster if you're afraid to use it?

If you don't use the filibuster out of fear of losing it, how is that different from not having it in the first place?

If the Democrats are afraid of taking a stand now, what makes you think they will not be afraid to take a stand the next time a Supreme Court seat becomes vacant? The filibuster will be just as vulnerable then, and the same arguments will be made then as you're making now.

I'm sorry, but I've heard this justification for far too long to believe it any longer. It is used every single time there is an opportunity for the Democrats in Congress to grow a spine.

ETA: The Constitution and precedent are more important than any temporary balance of the Supreme Court. If the Democrats do not stand up for the Constitution now, what is to prevent the Republicans from playing the same trick again, the next time a seat becomes vacant in a Democratic president's final year in office? FWIW, I believe this argument is so powerful that it is the only thing that will work. Every time a Republican talks about nominating Justices who respect the original intent of the Constitution, they should be asked about what the Constitution says about the nomination process for a Supreme Court justice.

[tritsofme]

13. That's not my argument. I'm saying to use it when it is most effective.

And that would be when there is a vacancy from Ginsberg/Kennedy/Breyer. We only get one opportunity to filibuster, and trying to stop or at least delay a 30 year extremist reactionary majority is more important than blowing it on a symbolic protest in favor of Garland. It's actually possible that we could even sustain the filibuster for such a vacancy in a way that would be impossible for the Scalia seat. Either way, it would exact more of a political cost on the Republican majority.

Also, I don't really agree with some of what you said. McConnell shredded norms, but did not violate the Constitution. The Constitution says nothing about the nomination process, the Senate the sole determiner of its rules, and that includes how it considers (or does not consider) presidential nominees.

I think the precedent has already been set, if Democrats were to retake the Senate in 2018, and there was a vacancy from Ginsberg/Kennedy/Breyer, I wouldn't be opposed to a blockade until the next election under the "McConnell Rule."

[athena]

14. What makes you think they're more likely to get rid of the filibuster now than they would then?

No, when the next Supreme Court justice dies or retires, Trump will nominate another extreme conservative, and people like you will still be making the same argument, saying that it's too dangerous for the Democrats to use the filibuster.

The Constitution lays out a system of government with three separate branches. When the party that controls the Senate refuses to confirm the President's nominee to the Supreme Court, and leaves the seat empty until someone from their party wins the presidency through demogoguery and fearmongering, then that party is taking over the judicial branch. This is unconstitutional by definition. The intent of the Constitution, which the Republicans love so much to talk about, is that there be three separate but equal branches of government.

If one year is not too long to leave a Supreme Court seat empty, then neither is four years. And I do not accept replacing a Supreme Court justice who died well within the term of a Democratic president to be replaced by someone to the right of Samuel Elito.

https://www.nytimes.com/interactive/2017/01/31/us/politics/trump-supreme-court-nominee.html

[tritsofme]

15. My argument is that the SCOTUS filibuster is already is already dead, so we ought to force the issue

When it is most politically advantageous to Democrats, not Republicans.

Republicans would much prefer to deal with the nuclear option now, for a nominee they like and a seat that will not alter the composition of the Court, and then head into much more contentious potential Ginsberg/Kennedy/Breyer vacancies with Democrats completely irrelevant to the process.

Republicans would be much more hesitant to go nuclear if the balance of the Court was at stake, and even if they ultimately find the votes to do it, we could extract a much greater political cost at that time.

I am not advocating Democrats never filibuster, so that is clearly a misrepresentation,
just that we do so when it is most favorable to us politicallly.

And again, you confuse norms with constitutionality. The Senate gave its advice on Judge Garland, and withheld its consent. No more is required by the Constitution, a fact future Democratic majorities should not soon forget.

[athena]

16. Four problems with your post.

1. The composition of the court is being altered with this nomination. If the Senate had done its job and confirmed Garland, who was eminently qualified, then he would be a Supreme Court justice today. Trump is not replacing Scalia with Gorsuch; he is replacing Garland with Gorsuch.

2. Suppose the next justice dies within the year. Will you not be making precisely the same argument you are now, that Trump's nominee isn't so bad, and that if the Democrats use the filibuster, they risk losing it, and then they would have no power to block Trump's next nominee in the next three years?

3. I am not confusing anything. You're the one misinterpreting my argument. You are talking about the words in the Constitution. I am talking about its intent, which is what Republicans bring up every time they nominate an extreme conservative to the Supreme Court. The intent of the Constitution is that there are three separate branches of government. The Senate majority blocking the president's nominee until someone from their party is elected to the presidency makes the Supreme Court's makeup depend on the rogue party in the Senate and how far it is willing to go to subvert the system. This goes against the separation of powers.

4. Only a Republican would argue that what the Senate did with Garland was "advise and consent". They refused to hold hearings or even meet with Garland because they knew he was eminently qualified and there was nothing they could pick at to justify a vote against him. They had advocated Garland previously as an acceptable moderate pick by a Democratic president when the Senate was controlled by Democrats. They declared even before President Obama nominated Garland that they would oppose whomever he nominated. When it looked like HRC was about to win the presidency, they declared that they might keep the seat open for four more years. If you think that's "advise and consent", all I can say to you is, congratulations on having won the last election.

[tritsofme]

17. Utter bullshit. Your accusation is as ridiculous as your inability to distinguish what is required

by the Constitution and what is a norm. I'm not saying what they did with Garland was acceptable, they shattered norms and it has been highly destructive. However I do recognize that the Senate has very wide latitude to carry out it's advice and consent power. Your argument is with the Constitution, not me. The responsibility is on voters to impose a new majority that does not act in this fashion, the Constitution offers us no relief.

As to #2, I don't know how many times I can repeat myself. If the Kennedy/Ginsberg/Breyer/Sotomayor/Kagan seats come up next year, then I would support a filibuster. If the Thomas/Roberts/Alito seats came up, I would not.

As to #1, I agree with your sentiment, but this is not the real world. Woulda Coulda, Shoulda ect. However you want to shake it, filling the Scalia seat with Gorsuch and restoring the status quo ante would be far less significant and damaging to the law than Trump replacing Ginsberg. We would have zero options going into the Ginsberg vacancy with it already established that Democrats are irrelevant because we forced a doomed symbolic fight over Garland. Why not maximize the small leverage we have, instead of staging a tantrum?

Luckily, it appears that there will be enough Senate Democrats to provide cloture, and maintain our ability to fight a more significant vacancy.

[flamingdem]

11. Yes

Yes Yes Yes Yes Yes Yes Yes Yes