#SCt There is very little actual law that applies. Basically that the POTUS has the authority to make the nomination & the Senate has the authority to advise & consent on the nomination. That’s it. See @AndrewCMcCarthy’s good article about this. /1
Beyond that, the process is entirely political. This is contemplated by the Constitution itself. The branches are supposed to work out power struggles between themselves. There is nothing wrong with that. Each branch has moves it can make. Making those moves is constitutional. /2
Elected officials serve during the entirety of their term. Suggesting they should voluntarily not exercise their power at some point during their term is just that - a suggestion. Suggestions can be rejected or ignored. And there’s nothing wrong with doing exactly that. /3
History about how this situation was handled before is interesting. It’s not binding in any way, but it does speak to our political norm. History shows that when faced with this situation in the past, the politicians have acted like politicians & done what favored their party./4
I see no reason why the Republicans shouldn’t nominate & confirm a justice as they have the authority & power to do so. There’s no rule saying you have to, or should, do things the way your opponents want you to do them if you don’t want to. Anyone saying otherwise is a child. /5
To the contrary, a significant reason imo to seat the justice now is the threats of violence & norm breaking (packing the courts, eliminating the Electoral College) from Dems if the Republicans do seat a justice. Threats of this type are unacceptable & must always be rejected. /6
Anyone who tries to coerce behavior by threatening violence or adverse retaliation is unfit for leadership & must be opposed vigorously. They cannot be placated. Rather they must be shown that such threats produce exactly what it is that they don’t want.Repeat until they learn./7
The only question I really have is whether the confirmation vote should be scheduled before or after Nov 3. I’m not sure yet which helps the election efforts of DJT & Republican Senators chances the most. It sounds like this is where McConnell is too for now. /8
It may not make much difference for right of center voters, but I am not sure that the same is true for left of center voters or independents. It bears thinking on for a bit & observing people over the next week or so. /9
A relevant consideration on this, however, is the AZ election. McSally holds the seat currently by appointment, not election. If she loses the election on Nov 3, the Dem (Kelly) can probably force being sworn in before Jan 3. That would change the Senate count to 52R-48D. /10
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