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Trump’s First Supreme Court Pick Could Be Days Away

Supreme Court Issues Multiple Rulings

During a media availability in the Oval Office today, President Trump said that he would be announcing his pick to replace Justice Antonin Scalia on the Supreme Court as early as next week, with some reports suggesting that he has narrowed the list down to three judges from Circuit Courts of Appeal around the country:

WASHINGTON — President Trump said on Tuesday that he would name his Supreme Court pick next week, and he was set to meet with congressional leaders to discuss the nomination on Tuesday afternoon.

The two leading contenders for the vacancy created by the death last February of Justice Antonin Scalia are a study in contrasts.

One, Judge William H. Pryor Jr. of the federal appeals court in Atlanta, is a former Alabama attorney general, a graduate of Tulane’s law school and an outspoken opponent of abortion and gay rights.

The other, Judge Neil M. Gorsuch of the federal appeals court in Denver, is a graduate of Columbia, Harvard and Oxford University, a former clerk to two Supreme Court justices and a former Justice Department official.

The two were described as among the leading contenders by an administration official who spoke on the condition of anonymity to discuss internal White House planning.

Both men are conservatives, but Judge Gorsuch’s credentials, erudition and more muted stances could smooth his confirmation chances.

Democrats remain bitter over the refusal of Republicans to consider President Barack Obama’s nomination of Judge Merrick B. Garland, and they say they will mount a furious opposition to any candidate out of the legal mainstream. Senator Chuck Schumer of New York, the minority leader, has said Democrats were prepared to try to keep Justice Scalia’s seat open indefinitely if Mr. Trump proposes such a nominee.

Judge Gorsuch, 49, appointed to the appeals court by President George W. Bush in 2006, was not initially thought to be a top contender. His name did not appear on the first list of 11 potential nominees circulated by the Trump campaign in May, though he did make a second list of an additional 10 names issued in September.

Judge Gorsuch’s best-known votes came in decisions concerning regulations under the Affordable Care Act requiring employers to provide free contraception coverage. He voted to accommodate religious objections to the regulations, a position largely upheld by the Supreme Court.

In general, Judge Gorsuch’s approach to the law mirrors that of Justice Scalia. He is an originalist, meaning he tries to interpret the Constitution consistently with the understanding of those who drafted and adopted it. And he is a textualist, focusing on the language of statutes rather than what lawmakers have had to say about them.

Judge John L. Kane, who was appointed to the Federal District Court in Denver by President Jimmy Carter, said Judge Gorsuch was admired by his fellow judges. “He writes opinions in a unique style that has more verve and vitality than any other judges I study on a regular basis,” Judge Kane said.

Judge Kane said Judge Gorsuch had voted both to affirm and to reverse his decisions. “In each instance, I have felt I was clearly understood and properly informed,” Judge Kane said. “I think Judge Gorsuch listens well and decides justly. His dissents are instructive rather than vitriolic. In sum, I think he is an excellent judicial craftsman.”

Judge Pryor is a protégé of Senator Jeff Sessions, Mr. Trump’s nominee for attorney general. When Mr. Sessions was Alabama’s attorney general, Mr. Pryor served as his deputy, succeeding him when he joined the Senate.

Representing Alabama, Mr. Pryor in 2003 filed a supporting brief urging the Supreme Court to uphold a Texas law that made gay sex a crime. The position of the gay men challenging the law, Mr. Pryor wrote, “must logically extend to activities like prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia.”

“The states should not be required to accept, as a matter of constitutional doctrine, that homosexual activity is harmless and does not expose both the individual and the public to deleterious spiritual and physical consequences,” Mr. Pryor wrote in the brief.

At his 2003 confirmation hearing, he stood by an earlier statement that Roe v. Wade, the 1973 Supreme Court decision that established a constitutional right to abortion, was “the worst abomination of constitutional law in our history.”

“I believe that not only is the case unsupported by the text and structure of the Constitution, but it had led to a morally wrong result,” Mr. Pryor told the Senate Judiciary Committee. “It has led to the slaughter of millions of innocent unborn children.”

Politico, meanwhile, is reporting that Trump has narrowed his choices for the Supreme Court down to three men:

President Donald Trump has narrowed his first Supreme Court nomination to three finalists, with 10th Circuit judge Neil Gorsuch and 3rd Circuit judge Thomas Hardiman emerging as front-runners while 11th Circuit Judge Bill Pryor remains in the running but fading, according to people familiar with the search process.

Trump interviewed at least those three finalists in New York during the transition, according to a person familiar with the search. Trump himself said Tuesday he would make a selection for the court’s empty seat next week and summoned top Senate leaders to the White House to discuss his impending choice to replace Justice Antonin Scalia, who died nearly a year ago.

“The president wants to move as quickly as he can,” said Leonard Leo, one of Trump’s advisers on the court pick and a top official at the Federalist Society.

Leo declined to discuss Trump’s short list, but he praised both Gorsuch and Hardiman effusively.

“Under our Constitution, the power rests with the people, and that was at the core of Justice Scalia’s legacy, and you heard from President Trump’s inauguration that is the core of Trump’s agenda, and that’s very much the core of what Neil Gorsuch’s record is as a jurist,” Leo said. “He’s an excellent writer. He’s got sharp analytical ability, strong intellect and he’s got a lot of strength and courage. Those are things that the president very much wants in a nominee.”

“Hardiman,” Leo added, “shares many of the same qualities.”

Leo went on to say that Hardiman is “an extraordinarily talented and smart jurist” who has “a very direct and understandable writing style.”

As Gorsuch’s fortunes have risen, Pryor’s have dimmed. A 2006 George W. Bush appointee, Pryor is currently the subject of raging debate on an off-the-record group email list that includes many in the conservative legal and political communities, including many Republican Senate staffers, thanks to his decision to join the majority in Glenn v. Brumby, a 2011 opinion that protected transgender people from workplace discrimination.

“I think everybody on this list probably has something I’m not going to agree with. I think that decision with Pryor probably would be the one that would fall into that category,” said Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, a conservative legal organization.

John Malcolm, who oversees a legal center inside the Heritage Foundation, acknowledged that “Bill Pryor has been getting attacked from the right. Which is strange to me.”

Politically, Pryor’s nomination would spark outrage on the left — liberal activists are likely to mobilize around his statement that Roe v. Wade is “the worst abomination of constitutional law” — without fully unifying conservatives.

All three of these nominees are relatively young, with Pryor and Hardiman being in the early 50s and Gorsuch being just 49 years old, so if this is indeed the list that Trump has settled on he could end up appointing someone who will be on the Court until almost the middle of the 21st Century. As I’ve said before, though, this appointment is not likely to have a huge impact on the Court’s ideological balance on the Court and very little is likely to change there in the short term. Whoever Trump appoints will be replacing a Judge appointed by a Republican to replace another Justice who was appointed by a Republican President. Except perhaps in those instances where Justice Scalia’s views on how the Constitution and statutes should be interpreted and applied caused him to differ from his fellow conservatives on the Court, times that have sometimes included landmark cases such as the decision which struck down laws against burning the American flag, there is likely to be little difference between the Court with a Justice Gorsuch, Hardiman, or Pryor and the Court with Antonin Scalia. To the extent we can expect a significant battle over the future of the Court, it will come if and when it becomes necessary to replace Justices Ginsburg, Breyer, or Kennedy, a time that could come sooner rather than later given that two of these three Justices (Ginsburg and Kennedy) are over eighty or more years old and Justice Breyer is 78 years old. At that point, the balance on the Supreme Court will most assuredly be on the line in a way that it currently isn’t and that will have a significant impact in a whole host of areas.  At this point, speculating on who the nominee might be is an exercise in pure guess work, though.

One interesting point to watch will be to see how Democrats react to whoever Trump ends up nominating. Selecting Pryor, who had a rocky confirmation process when President George W. Bush named him to the 11th Circuit Court of Appeals, will most assuredly become a point of controversy given his record prior to becoming a Judge and the fact that it nearly took a decision by Republicans to eliminate the filibuster in whole or in part to get Senate Democrats to allow his nomination to get to a floor vote. Gorsuch and Hardiman are likely to prove less controversial than Pryor, but we still could see Democrats try to slow the process down if only because of how the Republicans reacted to President Obama’s nomination of Merrick Garland and their refusal to hold hearings or a vote on his nomination. At this point, Senate rules still require sixty votes to end any filibuster for Supreme Court nominations so the Democratic minority could pose real roadblocks to any nominee if they chose to. At that point, Republicans may have to decide if they want to take the steps laid out by Harry Reid in November 2013 and eliminate the filibuster for Supreme Court nominees. Right now, though, it’s unclear if the votes exist to do this. At the very least, Republicans would need a Senate majority to vote in favor of a motion to change the filibuster rule in this manner and, at the moment it doesn’t appear they have that majority. Senators John McCain, Lindsey Graham, and Orrin Hatch have all publicly said that they would oppose such a move and they would likely be joined by a handful of other Republicans at least, including Alaska’s Lisa Murkowski and Maine’s Susan Collins. Even with just Hatch, McCain, and Graham, though, any effort to invoke the so-called ‘nuclear option’ for a SOCTUS nomination would likely be unsuccessful and Majority Leader Mitch McConnell does not seem like someone who would mount a battle like that unless he was sure he would win.

All of this means that we could be in for the first real political fight of the Trump Administration. Stay tuned.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. grumpy realist says:

    “originalism” == “whatever I want it to be”

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  2. The idea of having four extremely Conservative Men against Three Liberal Women is bizarre. If Trump wants to nominate horrible judges he should find a woman to do that.

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  3. David M says:

    I’m not sure why he’s bothering with the nomination. The next election is just around the corner and the people need to be able to speak their mind.

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  4. michael reynolds says:

    Fingers crossed for Carrot Top.

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  5. SenyorDave says:

    @David M: I’m not sure why he’s bothering with the nomination. The next election is just around the corner and the people need to be able to speak their mind.

    Agreed. I could have accepted it if he had nominated someone in his last Saturday or Sunday, but anything after that is just too late, too close to the next election. I guess he shouldn’t have taken the weekend off.

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  6. Guarneri says:

    Has the world ended yet?

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  7. CSK says:

    Part of me thinks that it won’t be anyone named so far, but someone whose name pops into Trump’s head the morning of the day he makes the announcement. Trump has the attention span of a flea, and he appears incapable of assimilating any detailed information. He’s not capable of assessing anyone’s credentials.

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  8. al-Alameda says:

    @Guarneri:

    Has the world ended yet?

    Based on conservative responses to the Women’s marches across the country, ‘no’ but we came very close. It seems Madonna caused many conservative men to become enraged to the point where they were drooling uncontrollably all over themselves. It could have been worse,

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  9. grumpy realist says:

    @Guarneri: No, but the President of the US has just decided to cede our place in the world to China.

    Have fun.

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  10. James Pearce says:

    Senator Chuck Schumer of New York, the minority leader, has said Democrats were prepared to try to keep Justice Scalia’s seat open indefinitely if Mr. Trump proposes such a nominee.

    Democrats are prepared for no such thing.

    Elizabeth Warren voted to approve Ben Carson for HUD secretary, but Chuck Schumer is gonna save us?

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  11. MarkedMan says:

    This could be interesting. I’m going with the assumption that Trump told several different groups they would be able to pick the Supreme Court nominee, and that he is now tossing them out and soliciting a “deal” with new suckers.

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  12. Just 'nutha ig'rant cracker says:

    @Guarneri: You’ve worn this one out so badly that it needs to look up to see bottom. Work harder on your snark, please.

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  13. Just 'nutha ig'rant cracker says:

    @grumpy realist: NO! NO! NO! He’s going to lose a war over man-made offshore islands in the South China Sea and then cede our place in the world to China. Sequence is everything!

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  14. grumpy realist says:

    @Just ‘nutha ig’rant cracker: Well, I was thinking more that China will hold the torch for globalization as well as putting together their own form ot TPP (or whatever it was) with all the Pacific Rim countries. Which means international corporations will be talking to China as the purveyor of globalism, not the US.

    Put all the international corporations together up against Trump and I know who’s going to win and it’s not Trump.

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  15. Stormy Dragon says:

    @grumpy realist:

    No, but the President of the US has just decided to cede our place in the world to China.

    I seem to recall Clinton promising to pull out of the TPP during the campaign. Which plank of the Democrat platform was ceding our place in the world to China?

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  16. Gustopher says:

    @David M:

    I’m not sure why he’s bothering with the nomination. The next election is just around the corner and the people need to be able to speak their mind

    Especially when the most recent election had so many irregularities — I’ve heard there were millions of illegal ballots. Since we don’t know who voted for what with the secret ballot, I think we better hold off on any lifetime appointments until we get the problem investigated and then a clean election.

    Who do we want selecting our supreme court justices, someone we know was elected by the American People, or someone who may have been elected because of MILLIONS of illegal ballots?

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  17. EddieInCA says:

    @Stormy Dragon:

    Clinton lost. You can’t use that excuse any longer. Try another one.

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  18. michael reynolds says:

    @Guarneri:

    No, everything is fine. There’s a rancid piece of pork belly in the White House trying to simultaneously break his own world record for craziest lies in 24 hours, while simultaneously sucking Putin’s pootie; we’re handing the free world over to Angela Merkel and Xi Jinping; and it seems that illegal aliens have a 50% turn-out rate at the polls. Couldn’t be better.

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  19. HarvardLaw92 says:

    @michael reynolds:

    Have you noticed how quickly Trump’s White House began to leak like a sieve / how quickly the long knives came out?

    We already have internecine warfare in the West Wing and aides gunning for their boss.

    And we’re only on day 4 … :-)

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  20. michael reynolds says:

    @HarvardLaw92:

    Fascist regimes. People imagine them to be models of efficiency, but paranoia, fantasy, stubborn ignorance and a rejection of reality are not great management principles. Psychopaths are brilliant at threatening and dividing, useless at organizing.

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  21. HarvardLaw92 says:

    @michael reynolds:

    Here’s to hoping that he keeps doing exactly what he’s doing. They’re dead right about one thing – with nobody prepared to tell him no, which few people I know have ever been willing to do given his tendency to view it as an attack – he’s going to go off of the rails at light speed.

    I suspect that they’re trying to passive / aggresively nudge him into seeing the error of his ways. I know this guy, and that won’t work. It’ll just make him paranoid. Cue up Nixon and the Plumbers 2.0.

    Mark my words – this situation will not improve. It will get far, far worse.

    If we survive it, it will be political manna from heaven for Democrats. We may be seeing the construction of the funeral pyre on which the Republican Party as we currently know it eventually immolates itself.

    Couldn’t happen to a nicer, more deserving bunch of folks.

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  22. Davebo says:

    @HarvardLaw92: But he’s known for picking only the loyalist, bestest and brightest subordinates!

    That was supposed to be the upside.

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  23. HarvardLaw92 says:

    @Davebo:

    He has always surrounded himself with sycophants – people of generally mediocre talent who were willing to cheerfully surrender their dignity in exchange for a check. As a result, he’s generally never learned how to deal with being told no. This is partly because he likes to be fawned over and partly because (IMO), deep down he knows himself to be mediocre as well. People like that will never allow anyone more talented that they are to thrive for long – it’s too much of a threat to their fragile egos. As a result, his inner circle up to now has been comprised of people who rose up through the ranks within the walls of TrumpWorld by virtue of their own mendacity and mediocrity.

    The mistake here is that he has now surrounded himself with people who, more or less, are successful in their own right. Their status doesn’t spring from having been a Trump sycophant, and as a result he has far less ability to control them. Most importantly, they all know exceedingly well how this game is played, and many of them are masters at playing it.

    Some are there due to a belief structure, others for the notoriety and still others for the opportunity to serve. If – or I should say when – Trump’s behavior begins to threaten those things, they’re going to be far less reticent about attacking him in order to protect what it is that they value. Witness what we’re already seeing, then imagine how much worse he could get if the leaks continue (and they will …) I’m fairly convinced that we’re looking at another paranoid alcoholic Nixon presidency in the making.

    Our job at this point is just to keep the pressure on – brutal and unrelenting. He can’t handle it. The worse it is, the greater the magnitude of his errors and the more off of the reservation he’ll go.

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  24. Paul Hooson says:

    It is sad that President Obama’s choice was never given a hearing. He was a very decent man. – BTW: Strangely, the entire court is comprised of either Catholics or Jews, with no Protestants.

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  25. Ben Wolf says:

    @grumpy realist: Trump isn’t so much saying China can run the game as upending the table and declaring we’re now playing Texas Holdem’. It’s a high-risk gambit that I assume his people think necessary to stop the continued erosion of American economic pre-eminence we’ve seen over the last thirty years.

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  26. Ben Wolf says:

    @michael reynolds: This remains true as when it was recorded 76 years ago.

    https://m.youtube.com/watch?v=V1fMvLbE85E

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  27. Kylopod says:

    @Paul Hooson:

    Strangely, the entire court is comprised of either Catholics or Jews, with no Protestants.

    That’s been the case since John Paul Stevens retired in 2010. It was noted at the time. If Garland had been confirmed, the Court would have become 44% Jewish.

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  28. Grumpy Realist says:

    @Stormy Dragon: just because it wasn’t mentioned doesn’t mean it won’t happen. We had our chance and muffed it.

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  29. Ben Wolf says:

    @Grumpy Realist: If rent-seeking agreements like TPP are the best chance for U.S. dominance then it has no chance. It would only have encouraged the pre-existing trends generating social instability in the developed world while the benefits went solely to the wealthy.

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  30. C. Clavin says:

    @michael reynolds:
    This morning I noticed a bunch of calls for Trump to be removed from office by Amendment 25 Article 4.
    https://twitter.com/davidfrum/status/823708868966547456

    The symptoms of psychopathy include: lack of a conscience or sense of guilt, lack of empathy, egocentricity, pathological lying, repeated violations of social norms, disregard for the law, shallow emotions, and a history of victimizing others.

    Trump fits the clinical description of a psychopath to a “T”.
    Are Republicans going to wait for him to really fwck things up before they do something about it? Maybe after he pops a nuke because the Media told the truth?

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  31. rodney dill says:

    @grumpy realist: I thought it was Russia, please make up your mind.
    😉

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  32. C. Clavin says:

    @rodney dill:

    I thought it was Russia, please make up your mind.

    You are confusing blackmail and manipulation with abdication. One is coerced and one is voluntary.

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  33. rachel says:

    @HarvardLaw92: Is there any member of Trump’s crew not bound to him by greed, fear, ambition and/or spite? Is there anybody near him that regards him with affection or loyalty? Of course there are leaks and will be more.

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  34. Facebones says:

    @Guarneri: Well, we have started jailing journalists for doing their jobs.

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  35. michael reynolds says:

    @Ben Wolf:
    Thanks for that. Made my morning. I believe that Chaplin fellow may have talent.

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  36. michael reynolds says:

    @HarvardLaw92:

    I think that’s right. He’s batshit and the sooner the American people recognize that fact, the better. The women’s march was a miracle in that regard – he’ll never get over it. We need to do anything and everything we can to undermine his fragile ego. He’s finally arrived at the ultimate party and yet he is still being sneered at as a low-class vulgarian and he can’t take it.

    The analogy that comes to mind is Spanish bullfighting. He’s a big, stupid beast, bred for belligerence. We need to tease him and bleed him and weaken him until even the GOP realizes he’s going down.

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  37. rachel says:

    @michael reynolds: Alec Baldwin & the SNL crew should be awarded both ears and the tail.

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  38. James Pearce says:

    @michael reynolds:

    The analogy that comes to mind is Spanish bullfighting.

    Based on the recent past, this is how I think that’s going to go…..

    https://www.youtube.com/watch?v=2mKibJnVM0c

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  39. Pete S says:

    @michael reynolds: Are we really sure that he is being weakened? His political demise has been widely predicted since June of 2015. Rational people already didn’t support him, even if they voted for him. What has he done lately that would cause one of his supporters to say “now he has gone too far”?

    And even if the Republican Party succeeds in getting rid of him (Democrats cannot do it alone) are we sure that the remaining government would be better? Maybe fewer asinine tweets but I don’t see any policy differences. For that matter what evidence is there that a single Republican Member of Congress genuinely wants to get rid of him, or would have the courage to try even if they did?

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  40. HarvardLaw92 says:

    @rachel:

    Possibly a few members of his family, although I have my doubts about whether they trust him. He IMO believes that he can trust them. Everybody else – no. They’re – to a man / woman – servile lackeys. He doesn’t trust them and their loyalty to him is solely about self-preservation.

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  41. Ben Wolf says:

    @michael reynolds: I’ve been putting in calls to see if i can manage him but people just hang up.

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  42. Terrye Cravens says:

    I know people who voted for Trump because of this issue. Personally, I don’t think any Supreme Court pick can justify giving the nuclear codes to a lunatic.

    I hope the Democrats make them pay for this. After Garland, they should drag this out as long as possible. After all, that worked for the GOP.

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  43. Terrye Cravens says:

    @James Pearce: As a general rule Presidents can pick their cabinet…but votes for Supreme Court are not the same thing. At all.

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  44. Terrye Cravens says:

    @Ben Wolf: That is nonsense. If there were flaws in the TPP then efforts should have been made to improve it…but no, Trump just threw it out…and thus far Australia, New Zealand, Japan and even Chile are looking to China to take our place. Even Germany is making overtures to Asia. Believe it or not, threatening people and promising tariffs is not going to make other countries grovel at our feet. Just the opposite.

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  45. Ben Wolf says:

    @Terrye Cravens: The TPP itself was the flaw. That’s what pro-rentier Democrats still don’t get.

    An agreement devoted to ensuring the benefits accrue to the wealthiest while everyone else pays the cost is political and social suicide.

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