Justice Scalia's passing...

[moonpie23]

condolences to his family.


The longest Supreme Court confirmation process from nomination to resolution was Brandeis, at 125 days. Obama has 342 days left in office.

this is going to get messy...lots of rules....lot's of moves on both sides...

[OldPhiKap]

condolences to his family.


The longest Supreme Court confirmation process from nomination to resolution was Brandeis, at 125 days. Obama has 342 days left in office.

this is going to get messy...lots of rules...lot's of moves on both sides...

It took President Tyler fifteen months to get a nominee confirmed. The Senante blocked or vote down several of his nominees. Not a chance that one gets confirmed this year. I think the Republican chair of the Senate Judiciary Committee has already stated as much.

Regarding Scalia, whether you agreed or disagreed, he was one of the most influential jurists in American history.

[A-Tex Devil]

Setting aside all of the other stuff, and I am not a Scalia fan at all, reading about his deep friendship with Ginsberg over the last day outside of their role as jurists has been cool. The 2 houses of the Capitol should take note.

[sagegrouse]

Several years ago, to my surprise, Justice Scalia was my seatmate on a flight from Denver to Washington. He was returning from a fly-fishing trip to Wyoming. He was quite an outdoorsmen, and often traveled, he said, with people he met as a Supreme Court Justice responsible for the Fifth District, including Louisiana, Mississippi and Texas. It was on a hunting trip where he passed away, outside of Alpine, Texas in the Big Bend region.

While on our flight he did some reading for an hour or so, and then we chatted the rest of the way. Mostly we talked about fishing -- redfish on the Gulf and trout-fishing in the Rockies. He was very pleasant, but obviously gets very intense, even on small issues. The closest we got to political or court issues was on the government and religion.

[Olympic Fan]

Think about this ... the only way this replacement tips the balance of the court is if Scalia is replaced with a Liberal justice. If another conservative is named, we get the same 5-4 balance we have now with moderately conservative Kennedy as the swingman (I say that because of the Obamacare vote ... in most cases, he is part of the 5-vote conservative majority -- in fact, he authored the infamous Citizen's United Decision). If we end up with a liberal justice, the court goes the other way (and Kennedy loses a lot of his clout).

This is a dangerous game for the Republican/conservatives. The ONLY way we get a liberal justice at this point is if they block Obama's nomination (as they threaten to do) and Clinton/Sanders win the election and decide to push a more liberal candidate.

I'm assuming Obama nominates someone very moderate, very unobjectionable to put the onus of obstructionism on the Republicans.

If he/she is blocked ... and the Republicans win, they can name another hardcore conservative -- and the court balance stays the same (until one of the older liberals steps down or dies).

But if he/she (I was writing it that way because I don't know if Obama will nominate a man or woman, but seeing he/she like that, I had to think -- have we ever hand a transgender justice?) is blocked ... and the Democrats win the White House, we could get a much more liberal court.

Not sure of the mechanics, but it might be that the Republicans can block the nomination until the election, then if they lose, rush to approve Obama's pick -- who is also certainly going to be more moderate than a Clinton/Sanders choice. Of course, Obama might respond by withdrawing his nominee, saying that the new president should have the choice at that point.

As I say, a dangerous game -- more so for the Republicans. If everything works out of the Republicans -- they block the nomination and President Rubio/Cruz/Trump names the new justice, the court stays the same. If anything goes wrong, they wind up with a much more radical Supreme Court.

Cooler heads might think it through -- and if Obama does nominate a very moderate/unobjectionable candidate -- might decide that's better to accept that than having to deal with a much more liberal nominee after the election.

On the other hand, if Obama dos use this to make an ideological statement and nominate a flaming liberal, forget everything I said.

[The Gordog]

Think about this ... the only way this replacement tips the balance of the court is if Scalia is replaced with a Liberal justice. If another conservative is named, we get the same 5-4 balance we have now with moderately conservative Kennedy as the swingman (I say that because of the Obamacare vote ... in most cases, he is part of the 5-vote conservative majority -- in fact, he authored the infamous Citizen's United Decision). If we end up with a liberal justice, the court goes the other way (and Kennedy loses a lot of his clout).

This is a dangerous game for the Republican/conservatives. The ONLY way we get a liberal justice at this point is if they block Obama's nomination (as they threaten to do) and Clinton/Sanders win the election and decide to push a more liberal candidate.

I'm assuming Obama nominates someone very moderate, very unobjectionable to put the onus of obstructionism on the Republicans.

If he/she is blocked ... and the Republicans win, they can name another hardcore conservative -- and the court balance stays the same (until one of the older liberals steps down or dies).

But if he/she (I was writing it that way because I don't know if Obama will nominate a man or woman, but seeing he/she like that, I had to think -- have we ever hand a transgender justice?) is blocked ... and the Democrats win the White House, we could get a much more liberal court.

Not sure of the mechanics, but it might be that the Republicans can block the nomination until the election, then if they lose, rush to approve Obama's pick -- who is also certainly going to be more moderate than a Clinton/Sanders choice. Of course, Obama might respond by withdrawing his nominee, saying that the new president should have the choice at that point.

As I say, a dangerous game -- more so for the Republicans. If everything works out of the Republicans -- they block the nomination and President Rubio/Cruz/Trump names the new justice, the court stays the same. If anything goes wrong, they wind up with a much more radical Supreme Court.

Cooler heads might think it through -- and if Obama does nominate a very moderate/unobjectionable candidate -- might decide that's better to accept that than having to deal with a much more liberal nominee after the election.

On the other hand, if Obama dos use this to make an ideological statement and nominate a flaming liberal, forget everything I said.

The last scenario hardly seems likely given what we know of the current POTUS.

[JBDuke]

Please be careful to avoid taking this thread into public policy territory. Oly's post above is okay, as it just lays out a scenario and some strategy points for the replacement process. However, it's a very small step into places that will earn you an infraction or get posts deleted.

[77devil]

Hypocrisy in the Congress. I'm shocked, shocked I say. But if the situation were reversed, I'm sure the Dems would act the same. The smart play by President Obama, as Oly suggests, is to nominate a moderate and he probably will. But don't be surprised either if he goes the other direction.

[Mike Corey]

The chatter seems to have coalesced around Sri Srinivasan out of the D.C. Circuit, a former O'Connor clerk, and Solicitor General under President Bush.

I'll be curious to hear the Republican candidates offer up some names of folks they'd offer up should they be elected president.

Cruz said today that he'd support Michael Luttig, who was just 37 when he was appointed to the federal bench, who had clerked for Justice Scalia, and who resigned from the bench in 2006 for a job in the private sector.

[swood1000]

It's going to be difficult for the Democrats to maintain their purist posture given their own activities when they were facing nominees from Republican presidents. For example, here is what Senator Obama said about Justice Roberts when he was nominated to the Supreme Court:

"There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge. He is humble, he is personally decent, and he appears to be respectful of different points of view. It is absolutely clear to me that Judge Roberts truly loves the law. He couldn't have achieved his excellent record as an advocate before the Supreme Court without that passion for the law..."

But he said he was voting against him anyway:

"I ultimately have to give more weight to his deeds and the overarching political philosophy that he appears to have shared with those in power than to the assuring words that he provided me in our meeting. The bottom line is this: I will be voting against John Roberts' nomination."

Furthermore, he joined an effort to filibuster the nomination of Justice Alito while holding this view:

"There are some who believe that the President, having won the election, should have the complete authority to appoint his nominee, and the Senate should only examine whether or not the Justice is intellectually capable and an all-around nice guy. That once you get beyond intellect and personal character, there should be no further question whether the judge should be confirmed.

I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise and consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge's philosophy, ideology, and record. And when I examine the philosophy, ideology, and record of Samuel Alito, I'm deeply troubled.

I have no doubt that Judge Alito has the training and qualifications necessary to serve. He's an intelligent man and an accomplished jurist. And there's no indication he's not a man of great character." http://obamaspeeches.com/046-Confirm...ama-Speech.htm

Now the Democrats are shocked...shocked that the Republicans would even consider such a thing. It is absurd to suppose that anybody will think it is anything other than politics as usual. Of course, both Democrats and Republicans have engaged in precisely the kind of activity now proposed for the Republicans. If there were some item on the Supreme Courts's agenda that had captured the public's interest and which they wanted a resolution to, then perhaps there would be some pressure to get somebody confirmed. But I am not aware of any such item, and very few people will think that this is in any way different from any of the other political questions, except that it will get more press, all pious declarations notwithstanding.

[swood1000]

With the exception of the Ninth Circuit Court of Appeals in California, the federal bench is by and large pretty conservative. So ties help the GOP by and large.

The problem with a 4-4 SCOTUS is if you have a split in the circuits, and SCOTUS cannot resolve it. It's just one more dysfunctional branch of government.

However, only those 5-4 decisions in which Scalia was in the majority will be affected. The others will now be 5-3.

[swood1000]

In the Supreme Court term that ended in June, 2015, the voting broke down this way:

SupremeCourtVoting.jpg

In that term there were 19 5-4 decisions and Scalia was in the majority in only 6 of them:

5_4_cases.jpg

So it doesn't sound like a delay in nominating his successor will paralyze the Supreme Court.

[Mike Corey]

Of course, both Democrats and Republicans have engaged in precisely the kind of activity now proposed for the Republicans.

Well. "Precisely" may not be the right word here. Then-Senator Obama's remarks you have culled above are specific to nominees that were offered up by President Bush. His was a single voice articulating why he was not choosing to support individual nominees.

Respectfully, that's quite different from a party suggesting a president that will hold the office for another 11 months should abdicate a prescribed duty for the office altogether.

[Mtn.Devil.91.92.01.10.15]

In the Supreme Court term that ended in June, 2015, the voting broke down this way:

SupremeCourtVoting.jpg

In that term there were 19 5-4 decisions and Scalia was in the majority in only 6 of them:

5_4_cases.jpg

So it doesn't sound like a delay in nominating his successor will paralyze the Supreme Court.

It's an interesting gamble either way if the GOP decides to block any nominee. Seems to me the most likely thing to happen is for Obama to act quickly and get a closer-to-moderate judge nominated that the Republicans will have a more difficult time blocking (one of the aforementioned unanimously approved judges would be a good example). Then, either his nominee gets through and the court moves to the left by a step or two, or the Republicans block him or her. Blocking is a big risk - gives the Democrats an election issue (look how unreasonable these people are; they approved this nominee before they didn't approve them) AND runs the chance of ending up with an even more radical judge on the bench if they were to lose the national election.

Of course, the big win is if they obstruct the nominee, win the election, and then get "their guy" on the Supreme Court, maintaining the ideological make up of the previous nine.

I'll be quite curious to see how this all plays out. As I mentioned immediately after Scalia's death, this is a much more interesting drama to me than these primaries. Also, the court has a much more significant impact on the long-term direction of our country than either the primaries or the general election.

[CrazyNotCrazie]

To build on the comments above, the situation that I am trying to play out is that Obama nominates someone, Republicans stall/reject in hopes of winning the election, and Hillary/Bernie wins. They then nominate another Democrat. Assuming the makeup of the senate stays relatively the same as it is now, what's to stop them from blocking whoever the new president nominates as well, and we go on indefinitely with eight judges, with a potential death spiral where no one can get approved anymore until someday the president and senate are politically aligned? Doing some very quick research, it looks like the Senate could flip closer to 50-50, but Dems are unlikely to get a majority.

[Mike Corey]

[W]hat's to stop them from blocking whoever the new president nominates as well, and we go on indefinitely with eight judges

Technically, nothing.

Time passing would result in new elections, and additional vacancies on the Court. Together, this would prompt action at some point, as you suggest.

[sagegrouse]

To build on the comments above, the situation that I am trying to play out is that Obama nominates someone, Republicans stall/reject in hopes of winning the election, and Hillary/Bernie wins. They then nominate another Democrat. Assuming the makeup of the senate stays relatively the same as it is now, what's to stop them from blocking whoever the new president nominates as well, and we go on indefinitely with eight judges, with a potential death spiral where no one can get approved anymore until someday the president and senate are politically aligned? Doing some very quick research, it looks like the Senate could flip closer to 50-50, but Dems are unlikely to get a majority.

I dunno, Crazy, but eight of the top ten most at-risk seats are Republican. See The Hill article. Roll Call nine of the ten most vulnerable seats to be Republican.

[77devil]

Well. "Precisely" may not be the right word here. Then-Senator Obama's remarks you have culled above are specific to nominees that were offered up by President Bush. His was a single voice articulating why he was not choosing to support individual nominees.

Respectfully, that's quite different from a party suggesting a president that will hold the office for another 11 months should abdicate a prescribed duty for the office altogether.

In 2007 Chuck Schumer said the following 17 months before the end of President Bush's 43 second term.

"How do we apply the lessons we learned from Roberts and Alito to be the next nominee, especially if—God forbid—there is another vacancy under this president? … [F]or the rest of this president’s term and if there is another Republican elected with the same selection criteria let me say this: We should reverse the presumption of confirmation. The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito. Given the track record of this president and the experience of obfuscation at the hearings—with respect to the Supreme Court, at least—I will recommend to my colleagues that we should not confirm a Supreme Court nominee except in extraordinary circumstances."

So I think there is plenty of hypocrisy on both sides.

[Chicago 1995]

In 2007 Chuck Schumer said the following 17 months before the end of President Bush's 43 second term.



So I think there is plenty of hypocrisy on both sides.

Schumer, while not speaking in a terribly cooperative or constructive manner, was speaking hypothetically.

And the distinction between (even wrongly) articulating opposition to a particular nominee that is in the midst of confirmation and issuing statements that make clear an intent to reject ANY nominee without an identity or record upon which to base any opinion is, I think, obvious, as Mike Corey noted above.

Beyond noting those distinctions, it's impossible for me to comment further without veering way into PPB territory, so I'll leave it at that.

[NashvilleDevil]

McConnell should have never said a thing about blocking a nominee because anyone with a pulse knew that the Republicans were going to try and run the clock out on Obama's term.