this post was submitted on 03 Dec 2024
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Senate was under republican control, Obama wasn't getting any justices confirmed.
Refusing to hold a hearing could have been interpreted as de facto confirmation.
No it couldn't. The Senate has to confirm them, and McConnell refused to hold a confirmation vote. There wasn't a damn thing Obama could do about it.
It would be setting precident and Democrats refuse to ever do that.
It's argued at length here.
constitutioncenter.org/amp/blog/constitution-check-could-obama-bypass-the-senate-on-garland-nomination
That argument sounds nice but it wouldn't hold up. POTUS can't just impose an arbitrary deadline. Unfortunately the constitution is too vague and has a lot of untested loopholes like that. Still, I agree they should have at least tried to argue it and get a ruling on it for future reference.
One thing the Dems need to learn from the Repubs is that you should go down fighting, don't cede even when you're 99.5% sure to lose on an issue. Even though repubs have lost most of the time, they've gotten away with some shit with that strategy and it moves the overton window on what is considered possible, making it gradually more likely to get away with even more.
It wouldn't hold up to whom? The Senate? I'd like to say that even Democrats could spin that in their favor, but maybe they are that weak. The Supreme Court? What exactly would they do about it? Remember the national guard enforcing integration? The court has no enforcement arm, so just have the national guard escort and physically seat the new judge. All through the process, keep pounding on the message that the Senate is free to step up and do their duty at any point they choose.
You don't think Republicans would play it that way? I think that will seem pretty damn tame next to what we are likely to see in January.