Guest: Law professor Peter Shane on lack of 'institutional penalty' for GOP theft of SCOTUS; Also: House GOP makes healthcare bill even crueler...
By Brad Friedman on 3/21/2017, 5:52pm PT  

On today's BradCast: Donald Trump's U.S. Supreme Court nominee faced questions all day in the U.S. Senate Judiciary Committee. But what the hell is Judge Neil Gorsuch even doing there at all? And doesn't normal coverage of the hearings do little more than normalize a decidedly abnormal situation? [Audio link to show follows below.]

Donald Trump's selection to fill the seat left vacant by the death of Justice Antonin Scalia more than a year ago, represents nothing less than a stolen seat on a stolen U.S. Supreme Court. If he is confirmed, Republicans are likely to be rewarded for their theft with a majority on the high court for another generation, following their unprecedented refusal to even hold hearings for Barack Obama's nominee for the seat, Judge Merrick Garland.

I've been wrestling with how to cover this week's hearings, which I consider to be illegitimate (and that is true even setting aside the disturbing matter of Trump as President!) Professor Peter M. Shane of Ohio State University's Moritz College of Law joins me to try and help make sense of the situation. His recent piece at the American Constitutional Society, cited by the New York Times today, details how neither Democrats nor corporate media, to date, seem to have figured out how to issue any kind of institutional penalty for the GOP's blatant, brazen and unheard of theft.

Shane explains that, historically, despite Republican assertions to the contrary, "there is no close precedent" in history for what the GOP has done here. "The reason that they didn't want Judge Garland to become Justice Garland was, of course, the fear that they would be losing what had been a secure 5-4 conservative majority on the court. But they also didn't want to give him a hearing because they knew, if they gave him a hearing, that Judge Garland would appear to be so thoughtful, so reasonable, so accomplished and balanced a person, that it would be politically much more difficult to vote 'no'. Nobody in the Senate is constitutionally obligated to vote in favor of Judge Garland, it would just be hard to explain why [they didn't.]"

So they stole the seat instead, by refusing to even hold a hearing, much less a vote. As to the Democrats' lack of an organized response, such as a promise to filibuster Judge Gorsuch (or any other Trump nominee other than Garland), despite the threat of the GOP doing away with the filibuster for SCOTUS nominees, Shane observes: "It seems to me that the Democrats very frequently anticipate the political defeat that lies ahead, and just keep their powder dry for a fight that never happens." He argues Dems are likely "worried about political blowback for being a fierce party of resistance," adding: "That's what the Republicans have been, increasingly, since 1980. If they've paid a penalty for it, I haven't noticed."

Also on today's program: While Congressional hearings have taken over the beginning of the week, House Republicans are making last minute changes to their scheme to replace the Affordable Care Act, by making it still crueler for millions of Americans (but with even more kickbacks for wealthy ones!) in hopes of wheeling and dealing for enough votes to squeek by with passage in the U.S. House, where they plan to ram the bill through for a full floor vote this week before tossing it to the Senate.

Finally: A majority of Americans are unable to name even a single SCOTUS Justice, and the tax-payer cost for Trump's constant weekend vacations could cover four federal programs for the arts, the elderly, the jobless and the homeless that his budget proposal hopes to slash entirely...

Download MP3 or listen to complete show online below...

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