In our opinion: Fixing Senate hearings is as easy as 'School House Rock'

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  • Tyler D Prescott, AZ
    Sept. 11, 2018 10:03 a.m.

    @Matt in MI – “It wasn't "persuasion." It was an exercise in political power”

    Sorry, but you’re simply wrong.

    Throughout the hearings increasing numbers of Americans expressed concerned over Bork and his judicial philosophy (e.g., check out what he said about “poll taxes”). Congress was flooded with mail and in the end a majority of senators (including six Republicans) were persuaded to vote against his nomination.

    The process worked exactly how the Founders intended and was nothing like the raw “political power” exercise by Republicans with respect to Garland.

    It sounds like you and I genuinely differ here – I cried foul when Reps ignored Garland and I will do so again if/when Dems do the same.

  • Traveller Farmington, UT
    Sept. 11, 2018 7:54 a.m.

    @marxist
    The Attorney General would make the decision whether to indict a president, and the AG works for the President. Plus there is no legal barrier to a president pardoning himself.

    No, after the voters, it's the House that has to take action to hold a criminal president accountable. Who is on the SCOTUS is almost completely irrelevant.

  • Matt in MI Saline, MI
    Sept. 11, 2018 6:29 a.m.

    @TylerD:

    "Makes me sad that a fellow citizen would fail to see the different [sic] between persuasion (why Bork was ultimately defeated, no matter how nasty it was) and subverting the Constitution. "

    It wasn't "persuasion." It was an exercise in political power, at which the Democrats have traditionally been more proficient.

    In the last 100 years, Democrats have blocked four USSC nominations. Before Garland, Republicans had blocked one.

    So, it's now 4-2, Democrats in the lead.

    And yes, I thought at the time that Republicans should have given Garland a vote. But if it so happens that Democrats take the Senate this year, and Ginsburg dies in February of 2020, I will not cry foul when the Democrats fail to act on the nomination.

    But I also looked at numbers of blocked appointments to lower courts. Nobody, in history, had more failed appointments than George W. Bush with the Harry Reid Senate. It's not even close.

    "rationale for inaction resulting in non-confirmation."

    Insufficient time to properly consider the nominee. But, as I said, the exact number of days is negotiable.

  • marxist Salt Lake City, UT
    Sept. 10, 2018 8:55 p.m.

    @traveller. The supreme Court might well decide if a standing president can be indicted.

  • Traveller Farmington, UT
    Sept. 10, 2018 3:43 p.m.

    @marxist
    The idea that the SCOTUS will have anything to do with whether President Trump gets away with breaking campaign finance laws or whatever it is he is suspected of doing with Russia is a red herring. It is the House that determines whether a sitting president is impeached, and the Senate that then determines if an impeached president is removed from office. There is nothing a Justice Kavanaugh could do to either save or convict the President.

  • Tyler D Prescott, AZ
    Sept. 10, 2018 3:35 p.m.

    @SC Matt – “The only real difference I see is one of tactics, not results.”

    Makes me sad that a fellow citizen would fail to see the different between persuasion (why Bork was ultimately defeated, no matter how nasty it was) and subverting the Constitution.

    To the “District Court” point – Cavanaugh has nothing to do with it since (like Bork) the Senate is fulfilling its duty under the Constitution. But nice try…

    PS – interesting idea on pocket veto, though I fail to see any rationale for inaction resulting in non-confirmation. And even if it did make sense, once enacted, no president would ever send a nominee to the Hill when there was less than 90 days left in the session. So the practical effect would be every Congress would be forced to perform their Constitutional duty.

    @NoNamesAccepted – “The GOP simply delayed a vote a few months.”

    Is that what we’re calling stealing a SC seat these days? Please remember your words when the Dems pull the same nonsense… which they surely will.

  • SC Matt Saline, MI
    Sept. 10, 2018 2:25 p.m.

    @TylerD:

    "Shocking that you’re unable to see the difference here."

    The only real difference I see is one of tactics, not results.

    "Your understanding also fails to account for the fact that both parties (since Bork) have approved a President’s nominees by wide margins."

    I did the math. Even after Cavanaugh is confirmed, the 5 (R) nominated justices will have fewer total yes votes than the 4 (D) nominated justices. I disagree with your premise. It would seem the (R) senators are more tolerant when voting for (D) nominated justices. (No surprise there, of course.)

    "why would they have voted “no” [...] on a man they approved to the District court?"

    You realize, of course, that this applies to Cavanaugh as well, right?

    "If not, how would you propose we fix it?"

    Same concept as a pocket veto. The senate has a certain number of days in which they MUST vote on a presidential nomination. If they fail to vote before the deadline, automatically confirmed. If the session ends before a vote, and before the deadline, automatically not confirmed. I would choose 90 days, but that's open to negotiation.

  • Spangs Salt Lake City, UT
    Sept. 10, 2018 2:16 p.m.

    "No honest person can complain about the GOP politely declining to confirm Garland and radically shifting the court to the left from Scalia, until he deals with the abominable way the Democrats destroyed Robert Bork in their successful quest to get a more liberal judge appointed by Reagan."

    -And by the same token, no honest person can blame or expect the Dems to politely behave any differently when the GOP is in the minority. As NoNamesAccepted is well aware, the Dems will surely bring their decision to change Senate rules down upon the GOP with spiteful efficiency when the time comes.

    The GOP had their chance to uphold the collegiality of the Senate. They didn't. You can blame it all on Robert Bork (1980s??) if you want, but that is a 3 decade-old excuse. Furthermore, Bork at least had a confirmation hearing! It would be great if the Dems are the party that brings back Senate decorum, but after Garland, you can't blame them if they don't.

  • NoNamesAccepted St. George, UT
    Sept. 10, 2018 2:11 p.m.

    @Tyler D: "Congress fulfilled its constitutional obligation with respect to Bork... They did no such thing with respect to Garland."

    Democrats could have voted "no" and fulfilled that duty without destroying a man's good name. The GOP spared Garland any defamation that would have come so as to justify voting no for purely political purposes. Both the Demos and GOP rejected well qualified jurists for political reasons; differences of opinion on judicial philosophy. The Democrats chose to destroy a good man. The GOP simply delayed a vote a few months.

    @marxist: "The electoral college gave us a gerrymandered president"

    @Hutterite: "The supreme court needn't be our only active legislative body."

    These two statements demonstrate the real divide in American politics. They reveal either a deep misunderstanding of, or gross hostility toward our Constitutional form of government. The Electoral College deliberately requires broad geographic support to win the presidency, and the courts should not be legislating at all.

    It isn't that left and right merely disagree on what good legislation is, we clearly, fundamentally disagree on what constitutes proper government structure.

  • Ranch Here, UT
    Sept. 10, 2018 1:59 p.m.

    @SC Matt;

    Up until McConnell changed the rules, it required 60 votes in the senate to confirm one of Obama's SCTOUS nominees. It only requires 51 now that Republicans are in control.

    Yes, Reid did change the rules for the Federal Benches, but that was because Republicans stonewalled EVERY single Democratic nominee for sometimes years.

  • Tyler D Prescott, AZ
    Sept. 10, 2018 1:34 p.m.

    @SC Matt – “I see a clear parallel between those two events.”

    Shocking that you’re unable to see the difference here.

    Congress fulfilled its constitutional obligation with respect to Bork (which is to provide “advice & consent” not simply a rubber stamp). They did no such thing with respect to Garland.

    Whether you and I agree, Bork had some very controversial views on judicial philosophy. The Senate heard those views and voted accordingly.

    Where was the vote on Garland? And why would they have voted “no” (or decided to prior to hearings) on a man they approved to the District court?

    Your understanding also fails to account for the fact that both parties (since Bork) have approved a President’s nominees by wide margins.

    But it sounds like you’re OK with our current “methods”? Will you still be OK when Dems are in control and (because they now only need 51 votes) are likely to nominate judges that will make Ginsberg look like Scalia?

    If not, how would you propose we fix it?

  • SC Matt Saline, MI
    Sept. 10, 2018 12:32 p.m.

    @Tyler D:

    "And for those of you who continue to site [sic] Bork (as if that's an excuse for now decades after of bad behavior) you simply don't know what you're talking about."

    Why do you believe that?

    Reagan nominated a well-qualified judge to fill a vacancy. Democrats objected.

    Obama nominated a well-qualified judge to fill a vacancy. Republicans objected.

    I see a clear parallel between those two events.

    The methods? Well, now there's a difference. Democrats demonized a good man. Republicans ignored a good man.

    But to me, that just shows that the Republicans had a narrower majority, and couldn't risk a defection. If the Democrats had a 51-49 majority when Bork was nominated, I have no doubt that they would have chosen the same tactic.

    And if Republicans had a wider majority, they would have given Garland a hearing.

    And then voted "no."

    @unrepentant progressive:

    "Obama rarely had the super majority needed to get most any judge through the Senate. "

    His majority was larger than the Republican majority we now have.

  • NoNamesAccepted St. George, UT
    Sept. 10, 2018 12:28 p.m.

    @LOU Montana: "..the First Amendment... states: “Congress shall make no law respecting an establishment of religion,"

    And follows with, "Nor prohibit the free exercise thereof." Why would anyone omit those 6 short words unless she was overtly hostile to the free exercise of religion. Further, the prohibition on establishing a religion has zero bearing on definition of marriage, elective abortion, or other issues where the court has acted as super legislature.

    That religious beliefs guide some folk's position on these issues has no more bearing than that we are also guided by religious beliefs on matters of theft, assault, and perjury.

    @Shaun:"So do you believe you have a right to any gun a manufacturer designs?"

    As the court ruled in Miller, I believe the Constitution protects my right to own any arm in common usage among the US infantry and suitable for militia purposes.

    Do you believe the 1st amd protects your right to use modern technology to "speak" or publish? Do the 4th and 5th amds protect you against invasions of privacy using wiretaps, IR cameras, and other modern technology?

    Why do you apply a different standard to the 2nd amd than you do the 1st or 4th/5th?

  • Tyler D Prescott, AZ
    Sept. 10, 2018 10:24 a.m.

    Truth is I completely agree with Senators Sasse and Lee - the Judiciary is NOT a super-legislative branch (unless you want a dictatorship).

    However, it rings hollow in the face of massive Republican hypocrisy (e.g., refusing to fulfill their constitutional obligation with respect to Judge Garland).

    And for those of you who continue to site Bork (as if that's an excuse for now decades after of bad behavior) you simply don't know what you're talking about. Or to be more accurate, it's like getting upset about a kid shooting you with a BB gun and then using that as an excuse to drop a nuclear bomb on him.

  • Thomas Jefferson Salt Lake City, UT
    Sept. 10, 2018 10:15 a.m.

    The two party system is the problem. The inmates are running the asylum.

    Nothing will change until the 'purple' party launches and rids us of this idiotic duopoly. Both parties shudder at the thought.

    /Also our campaign finance system is basically legalized bribery.

  • unrepentant progressive Bozeman, MT
    Sept. 10, 2018 9:27 a.m.

    The notion that trump appointees are as far to the right as Obama's were to the left is a suspect claim.

    Obama rarely had the super majority needed to get most any judge through the Senate. He was obligated to find a person who was more moderate than ragingly liberal.

    trump operates under no such restraints. His Senate enablers are putting extremists on the courts

  • SC Matt Saline, MI
    Sept. 10, 2018 8:31 a.m.

    @Lou:

    "Where does it say, untrained persons can buy firearms. "

    Well, when the Constitution was ratified, the "militia" was all adult males of an appropriate age.

    Even under the militia act of 1903, the unorganized militia is all able-bodied males 17 to 45 years of age, not otherwise in the National Guard or Naval Militia.

    I suppose we could limit gun sales to males ages 17 to 45, but that seems like it would violate other sections of the Constitution. (Or even the remainder of the 2nd amendment, because it does say "people.")

    But why don't you simply change the Constitution? If you feel as if this needs to be changed, then do so. It's been before the USSC, and the answer was given in DC v Heller, and reaffirmed in McDonald v Chicago.

  • LOU Montana Pueblo, CO
    Sept. 10, 2018 7:21 a.m.

    Zabilde - Riverdale, UT; The Second Amendment of the United States Constitution reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

    Where does it say, untrained persons can buy firearms.

    Only trained and certified persons should own firearms! Stop the stupidity of untrained persons buying guns.

  • SC Matt Saline, MI
    Sept. 10, 2018 7:09 a.m.

    @unrepentant progressive:

    "This is a rank and fetid form of hypocrisy that shows just how low a member of the Senate and a proud member of the party of trump will go to cram yet another reactionary judge down the public's collective throat."

    I don't know how you can think this about Republicans in general without also recognizing that the situation today is almost exactly the same as the situation with Kagan 8 years ago.

    A liberal justice resigned. A liberal president nominated a liberal replacement. A majority Democrat Senate confirmed the liberal judge.

    Kagan is about as far left of center as Kavanaugh is right of center.

    It appears that you're not all that concerned about "process" as you are concerned about "outcome."

    And if you only argument is "I don't like the outcome" then your opinion isn't all that persuasive.

    So, if you supported Obama shifting the court in your favored direction, please explain why you think it's inappropriate for Trump to shift the court is *his* favored direction.

  • Freiheit Salt Lake City, UT
    Sept. 10, 2018 7:01 a.m.

    In this, as in other issues, commenters from both sides constantly repeat the mantra of "follow the Constitution, let the Constitution decide," as if this were some sort of obvious guide that everyone agrees on and can easily understand, usually meaning agreement with whoever is voicing their opinion. Unfortunately for this point of view, the Founders left us a document that for 230 years has engrossed us with our favorite game: what does it mean, and who decides that. After several false starts, (VA & KY Resolutions, SC nullification, Civil War), we have pretty much settled on the Supreme Court as final arbiter of constitutionality for both state and congressional statutes. Thus the composition of the court and the legal philosophy of potential justices becomes highly important. And how do we determine that outlook without examining past performance and asking questions pertaining to it? Senator Lee's idea of following the law is a circular argument, in that the law is ultimately what is at question. "Follow the Constitution" is a great idea if we could agree on what it means. But if we did that, we wouldn't need the Court, would we? Messy, isn't it.

  • Copybook Headings Draper, UT
    Sept. 10, 2018 5:57 a.m.

    I don't think we as a country would be at each other's throats (at least nowhere near as much as we are now) if the MSM had done it's job and destroyed Teddy ("we're gonna 'Bork' him") Kennedy after Chappaquiddick.

    Also, let's not forget the 'high tech lynching' Clarence Thomas got from Senate Democrats. After that and Robert Bork's hearing any complaints at all about the process (from Democrats, that is) are laughable.

  • Zabilde Riverdale, UT
    Sept. 10, 2018 3:45 a.m.

    Lou, what has that to do with anything? Are you referring to the Marriage issue? That was not establishing any state religion.

    @Shaun the 2nd does not enumerate weapon types it states arms, which was fully understood by the founding fathers to include all types of arms, including privately owned cannon and even warships. Any firearm design should be legal to own. Misuse that causes harm to others or damage to property can and should be punished. But owning any working weapon should not be illegal. Many own and safely use fully automatic machine guns, even heavy machine guns. Each year there are a few big "shoots" around the country where owners of such weapons gather at ranges designed to handle such weapons. They spend a few days and a good chunk of their own money enjoying their weapons responsibly. A legally owned and registered fully automatic weapon has not been used in a crime in this nation in decades. Registration of such weapons has been required since 1934.

  • marxist Salt Lake City, UT
    Sept. 10, 2018 12:25 a.m.

    As you reported, Senator Lee said "If senators repeatedly ask nominees about outcomes, the public is entitled to think that judges are supposed to be outcome-oriented. "

    But there is one outcome which the senators had every right to bring up, namely if Kavanaugh will be instrumental in getting President Trump excused from indictment for conspiracy with Russia and/or campaign violations. I want to know. So should the Deseret News.

  • LOU Montana Pueblo, CO
    Sept. 9, 2018 7:39 p.m.

    NoNamesAccepted - St. George, UT;

    The first part of the First Amendment to the Constitution states: “Congress shall make no law respecting an establishment of religion,

  • Shaun Sandy, UT
    Sept. 9, 2018 7:01 p.m.

    @nonames

    So do you believe you have a right to any gun a manufacturer designs?

    What about smart guns with GPS ammunition. Is it your right to possess this type of gun and ammunition?

  • unrepentant progressive Bozeman, MT
    Sept. 9, 2018 5:51 p.m.

    "To put Kavanaugh into what was rightly Bork's seat is entirely appropriate."

    Mr Bork, of Nixon fame got a hearing and was turned down. (And let us all remember that Bork did Nixon's bidding in firing Nixon's enemies. This was not exactly an exercise in moral courage, nor was it a particularly good recommendation for a lifetime appointment to the Supreme Court.) To call the seat, that Justice Kennedy occupied for three decades, the Bork seat, is way over the top. Other than same sex marriage, Justice Kennedy pretty much towed the conservative line on judicial decisions before the Court.

    On the other hand, the party of trump in control of the Senate in the last two years of Obama's term would not even give Merrick Garland a hearing. Ditto countless others to lower courts. Bork got his hearing and was denied the seat. The party of trump did not have the guts to give Garland and other nominees a hearing, much less a vote. And made up silly excuses doing so.

    Regular order is demanded here. Nominees need a hearing and a vote.

  • Hutterite American Fork, UT
    Sept. 9, 2018 2:56 p.m.

    I'm not to worried about this, even though the republicans have made a deal with the devil and trump to put up with him in order to stack courts. This ones' a done deal anyway.

    The supreme court needn't be our only active legislative body. Congress, apparently, has the ability to legislate as well, and to oppose and speak truth to a petulant president. Whether it does so or not is apparently up to the people it is made up of.

    It's time to clean house. And senate.

  • NoNamesAccepted St. George, UT
    Sept. 9, 2018 10:14 a.m.

    @unrepentant progressive:

    No honest person can complain about the GOP politely declining to confirm Garland and radically shifting the court to the left from Scalia, until he deals with the abominable way the Democrts destroyed Rober Bork in their successful quest to get a more liberal judge appointed by Reagan.

    Noboy accused Garland of being an Obama patsy. Nobody dredged up sladerous charges against Garland. The GOP simply exercised its political power not to confirm a left of center replacement for a strong originalist who died unexpectedly.

    In contrast, Kennedy resigned knowing full well Trump would appoint a replacement and the GOP had control of the Senate. To put Kavanaugh into what was rightly Bork's seat is entirely appropriate. Democrats act as if history started 3 years ago. And it was 9 months, not a year.

    @marxist:

    The Electoral College is a crucial constitutional protection against unfettered urban power. It is not "gerrymandering". When it keeps an ubran majority candidate from winning, instead giving us a candidate with appeal across broad geographic areas, it has worked as intended.

    Your comment highlights the left's disdain for the Constitution.

  • marxist Salt Lake City, UT
    Sept. 9, 2018 9:56 a.m.

    Well please pardon a dose of reality. The electoral college gave us a gerrymandered president who is now giving us a gerrymandered court, which will rubber stamp his madness.

  • NoNamesAccepted St. George, UT
    Sept. 9, 2018 8:20 a.m.

    The problem is, one side is hostile to notion of government being bound down by the chains of the constitution. They simply don't like the limitations imposed on the federal government by the constitution.

    And despite their party name, they don't even like democracy.

    40+ States have adopted non-discriminatory processes to issue licenses to law abiding citizens to carry guns for self defense. The constitution explicitly protects the right to keep and bear arms. We can see what happens when govt restricts this right in places like Zimbabwe and South Africa. But one side wants to outlaw certain guns and accessories.

    31 States defined marriage as a man and a woman. One side insists that definition be changed.

    Freedom of speech, assembly, and religion are enumerated. One side wants for force all of us to promote a message we find offensive.

    One side supports free speech for pornographers while attacking political speech of business owners.

    The process follows the goals. And one side has very unconstitutional goals. To fix the process, we must convince both sides to honor the constitution.

  • unrepentant progressive Bozeman, MT
    Sept. 9, 2018 7:45 a.m.

    But, what to do about a nomination that was vetted by the president for results? Senators Lee and Sasse don't wish to answer that question. Furthermore, a Democrat asking a nominee about his opinions on the issues with which he qualified for the nomination are then fair game.

    The party of trump wants it both ways. The party of trump nominates individuals which will bring about specific extreme judicial decisions, then complains when these decisions are queried. All this done in the speed of light.

    Yet when a Democrat nominates a judge for the various courts, the nominations are slow walked, even stalled for a year in the case of Merrick Garland for no reason alone but ideology.

    This is a rank and fetid form of hypocrisy that shows just how low a member of the Senate and a proud member of the party of trump will go to cram yet another reactionary judge down the public's collective throat.