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The Other Shoe

Recently, John McCain suggested that Republicans would block anyone Hillary Clinton attempts to appoint to the Supreme Court. Almost immediately afterward, he tried to deny that’s what he had said. But I just knew that some Republican politician would take up McCain’s idea. You know, someone a bit crazier than McCain.

So it was hardly a surprise when Ted Cruz started suggesting that having eight members of the Supreme Court would be just fine. You know, until some far-away day when a Republican (like himself) would be elected president.

What happened to the Republican assertion that we should let the voters speak and defer to the next elected president? I guess that promise only held until it became obvious that they were about to lose.

Indeed, Rep Jason Chaffetz (R-UT) is threatening all kinds of other abuses of power will be committed by the Republicans if Clinton wins. Like blocking all of her nominees (not just Supreme Court justices), and lots more investigations of Clinton (like they did for Benghazi and emailgate). Yup, the Party of No and the Do-Nothing Congress will live on.

If the Republicans do this, then I think it is only fair that the Democrats pull a few tricks. Electoral-Vote explains:

Needless to say, after pleading with the Senate to do its job for a few months, Clinton’s patience might run out. There are things she could do on her own to get some things decided, however. For example, suppose she issued an executive order saying that no undocumented immigrant who has been in the country for at last 5 years, has no criminal record, and who has paid federal income taxes will be deported, nor will any members of that person’s family. The Republicans would immediately sue her. She could probably successfully argue that the case should be heard in D.C. and the resulting appeal should be heard in the U.S. Court of Appeals for the District of Columbia. There are currently 11 active judges on the D.C. Circuit Court, of whom Merrick Garland is the Chief Judge. One of the judges was appointed by George H.W. Bush, three were appointed by Bill Clinton, three were appointed by George W. Bush, and four were appointed by Barack Obama, giving Democratic appointees a 7 to 4 majority. If they decided this case (or any other case about executive orders) in favor of the President, the Republicans would appeal to the Supreme Court, which would likely split 4 to 4, leaving the D.C. Court ruling as binding.

Needless to say, running a country by executive order would be a dangerous precedent, but what is the alternative if the Republicans keep their pledge to bring our government to a screaming halt?

The Republicans not only appear to be in a death spiral, but they are intent on taking our country down with them at all costs.



  1. Redjon wrote:

    We may hope that GOP lawmakers tipping their hand as to these plans ahead of this election, will encourage voters, including Republican voters, to think hard about what’s best for the country and whether they want four more years of gridlock when they cast their ballots November 8th.

    Friday, October 28, 2016 at 1:56 pm | Permalink
  2. ravilyn sanders wrote:

    The four liberal justices are not wholly without power. If three of them refuse to convene, the court will not have quorum. You need six. Of course, it has never happened before. But thinking about not confirming any justice for five years has not happened before too.

    We need a law with some kind of time limits to provide advice and consent. Something like if they have not voted NO within so many days, the nominee is automatically confirmed.

    Would it take a constitutional amendment for it?

    Friday, October 28, 2016 at 2:55 pm | Permalink
  3. Dave TN wrote:

    Ravilyn, sounds like a good suggestion for an executive order although I’m not a legal scholar in the least.

    Friday, October 28, 2016 at 3:53 pm | Permalink
  4. Sam Foster wrote:

    RE: The executive order scenario above?

    PLEASE YES! Let’s shove their no right back in to their face!

    Friday, October 28, 2016 at 7:31 pm | Permalink
  5. Yudith wrote:

    Why are Republicans whining so much? In fact, why is Trump whining so much? Because of the most recent email scandal, he may still become president, with either Congress or Senate controlled by Democrats. In that case, Republicans could appoint any Justice they want; if the Democrats try to do the same thing the Republicans did, Trump will simply change the Constitution and throw his opponents in prison.

    Saturday, October 29, 2016 at 6:58 am | Permalink
  6. Ralph wrote:

    With this SCOTUS issues and others, it’s hard to imagine this never ending gridlock Republicans have foisted on the American public will not cost them at the polls sooner or later, perhaps as soon as November 8th.

    Yudith – you realize any sitting president can’t “simply change the Constitution and throw his opponents in prison” at will, right? The office of president, unlike Trump’s imagining, is not a dictatorship. Or as LBJ once quipped, “Power? What power? The only power I have is nuclear and I can’t even use that!”.

    Saturday, October 29, 2016 at 9:46 am | Permalink
  7. notycoon22 wrote:

    Has anyone considered how old the democratically appointed justices are? Ginsburg is 83 and Breyer is 78. Both approaching retirement age. One of them leaves and the conservatives again have a majority. If both leave, then Kennedy would be able to go and the right would maintain their majority. Of course, then there wouldn’t be enough justices to convene the court. There are folks that think that would be just great.

    Saturday, October 29, 2016 at 11:02 pm | Permalink