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 (http://www.frontpagemag.com/point/261834/obama-filibustered-justice-alito-voted-against-daniel-greenfield) 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-Confirmation-of-Judge-Samuel-Alito-Jr-Obama-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 (http://www.wisbar.org/newspublications/insidetrack/pages/article.aspx?Volume=7&Issue=16&ArticleID=24273):

5946

In that term there were 19 5-4 decisions and Scalia was in the majority in only 6 of them (http://sblog.s3.amazonaws.com/wp-content/uploads/2015/07/SB_Stat_Pack_OT14.pdf):

5947

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 (http://www.wisbar.org/newspublications/insidetrack/pages/article.aspx?Volume=7&Issue=16&ArticleID=24273):

5946

In that term there were 19 5-4 decisions and Scalia was in the majority in only 6 of them (http://sblog.s3.amazonaws.com/wp-content/uploads/2015/07/SB_Stat_Pack_OT14.pdf):

5947

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 (http://thehill.com/blogs/ballot-box/senate-races/234983-2016s-top-10-most-vulnerable-senators). Roll Call (http://atr.rollcall.com/10-vulnerable-senators-2016/) 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.

[swood1000]

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.
The difference is that at the beginning of a president's term most senators in the majority party will only insist that a president from the opposite party nominate somebody closer to the center, and then they'll be willing to confirm. They know that nominating the candidate they would prefer just isn't going to happen and they are not willing to go indefinitely with only eight justices. However, at this point if they hold out for just a few months they might be able to get the candidate they would prefer.

[swood1000]

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.
Well, the Republicans are not really saying that Obama should abdicate his duty. They are saying that he should appoint someone to their liking and then they will vote to confirm. Isn't this what Obama was saying when he voted against Roberts and Alito?

[Atlanta Duke]

No surprise that SCOTUSBlog has a good aggregation of links to articles on the passing of Justice Scalia

http://www.scotusblog.com/category/special-features/justice-scalia-passes-away/

The speculation on nominees is bracketology for those who follow the Supreme Court - nobody on the outside knows but everyone can put forth their candidate for the #1 seed

As an example of this being guesswork, Tom Goldstein at SCOTUSBlog initially ran through his views on the confirmation process (he thinks nobody gets confirmed in 2016) and tagged Ninth Circuit Judge Paul Watford as the likely nominee

The favorite candidate in Democratic legal circles is generally Judge Sri Srinivasan of the D.C. Circuit, followed by Patricia Millett of the same Court. Both are recent Obama appointees. Srinivasan is a Indian American. Millett is a woman. Both would fit the ideological profile that the administration would want. But neither provides the same political benefit.

So while I will update my research on potential nominees, at this point I think that Judge Paul Watford is the most likely candidate.

http://www.scotusblog.com/2016/02/ninth-circuit-judge-paul-watford-is-the-most-likely-nominee-to-replace-antonin-scalia/

After thinking it over, he changed his mind several hours later

[A]t this point I think that Attorney General Lynch is the most likely candidate.

http://www.scotusblog.com/2016/02/how-the-politics-of-the-next-nomination-will-pay-out/

[77devil]

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.

The essence of Senator Schumer's and McConnell's comments is the same: there should not be a presumption of confirmation. Whether that presumption is manifest by blocking the process or voting down a fully qualified nominee on purely ideological grounds is superfluous. Substance over form is what is relevant in context.

[swood1000]

It seems that Robert Bork's nomination in 1987 was the watershed nomination. Before that, senators tended to vote only on whether the nominee was qualified, and understood that they were just going to have to take their lumps if the president was from the other party. In those days Roberts and Alito would have breezed through with little if any opposition. After that, it seems that constituents have been demanding that their senator vote on a political basis — for example what the nominee's likely position will be on abortion, etc. Scalia was confirmed 98-0 in 1986, and while it's true that he had only been on the federal bench for four years and didn't have the long paper trail that Bork, for example, had, still there is no way such a nominee would be confirmed today by that margin.

[swood1000]

Perhaps we can guess how this might play out by looking at Sen. Pat Leahy's actions when he was Chairman of the Senate Judiciary Committee. In May 2001 President Bush nominated John Roberts to the D.C. Circuit Court of Appeals. For the final 19 months of the 107th Congress, Leahy denied Roberts a hearing before his committee, as he did for another 11 appellate-court nominees. For Miguel Estrada, Leahy delayed a hearing for 16 months and then refused to permit a committee vote. http://www.washingtontimes.com/news/2006/oct/16/20061016-100753-4244r/


After Republicans regained control of the Senate in the 2002 elections, Mr. Leahy became the principal architect of the unprecedented systematic filibuster campaign against appellate-court nominees. In the 108th Congress (2003-2004), Democrats successfully filibustered 10 appellate nominees; they prevailed in seven cloture votes against Mr. Estrada alone, and threatened filibusters against more than half a dozen others. http://www.washingtontimes.com/news/2006/oct/16/20061016-100753-4244r/

I think that there are no clean hands in this business.

[Mal]

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.

I agree. I think the public can see when Calvinball's being played. It's clear that the "advise" in "advise and consent" has been on the rise in recent decades. But to suggest that the sitting President just not even bother because the Senate leadership won't even consider anyone is very different than suggesting that perhaps the presumption of confirmation of anyone who's basically qualified should be discarded.

I don't quite know why the Republicans have been so blustery about all this - it seems terribly unstrategic. Just wait until someone's nominated and make your case about how extreme you think they are. McConnell may have made the most reckless statement over the weekend, by saying the voting public should have a say in this. He might as well have pointed to the 2012 scoreboard himself - now he's given any Democrat who wants to an opening to note that the people had their say, when re-electing President Obama with 332 electoral votes. This is doubly baffling when combined with the fact that McConnell was in the Senate when Kennedy was confirmed 97-0 during Reagan's last year in office, and no one was suggesting we wait until after November so the people could be heard. [Aside - who cares about John Tyler's experience when we have much, much more recent precedent to point to?]

Even less helpful for Republicans is that Chuck Grassley, who was also in the Senate in 1988, came out this weekend and said "...it's been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year." It's one thing to be wrong on the facts - there have been 2 confirmations in the last 80 years during presidential election years, to zero rejections. But to neglect the most recent example of an election year confirmation when you yourself were in the Senate at the time? What is he thinking?

I also think the basic politics of this are probably not as favorable for Republicans as they'd like to believe, similar to shutting down the government. They can make all the disaster references they like, but the fact of the matter is Obama's approval numbers are right about where Reagan's were during his last year in office. And I think it's been pretty clear in recent months that Obama's felt pretty liberated by the lame duck role, and is more than pleased to spend his time going off on Republican obstructionism whenever the chance presents itself. He doesn't need their help anymore.

And, as others have noted here and in the election thread, there are a bunch of Republican Senators in competitive races right now that aren't going to be helped by this. There's no reason McConnell and Co. couldn't filibuster later, and let people like Kirk and Toomey strategically defect if it helps them win re-election, as the D's still won't get to 60. Now they have to either enforce message discipline and disadvantage some very vulnerable seatholders, or they look like they're backpedalling.

[BandAlum83]

You want interesting food for conjecture? Say Ted Cruz gets the nomination. It is thought that there is a high probability that his eligibility for president will be challenged. But where will the challenge come from? Who will have standing?

Suppose the SOS of more than one state challenges eligibility, the case could go to multiple circuit court jurisdictions. Ultimately, this would go all the way to the supreme court, but imagine a 4-4 tie, after different circuit courts ruling on opposite sides. What a mess. This could get very interesting, indeed.

[swood1000]

I agree. I think the public can see when Calvinball's being played. It's clear that the "advise" in "advise and consent" has been on the rise in recent decades. But to suggest that the sitting President just not even bother because the Senate leadership won't even consider anyone is very different than suggesting that perhaps the presumption of confirmation of anyone who's basically qualified should be discarded.

I don't quite know why the Republicans have been so blustery about all this - it seems terribly unstrategic. Just wait until someone's nominated and make your case about how extreme you think they are. McConnell may have made the most reckless statement over the weekend, by saying the voting public should have a say in this. He might as well have pointed to the 2012 scoreboard himself - now he's given any Democrat who wants to an opening to note that the people had their say, when re-electing President Obama with 332 electoral votes. This is doubly baffling when combined with the fact that McConnell was in the Senate when Kennedy was confirmed 97-0 during Reagan's last year in office, and no one was suggesting we wait until after November so the people could be heard. [Aside - who cares about John Tyler's experience when we have much, much more recent precedent to point to?]

Even less helpful for Republicans is that Chuck Grassley, who was also in the Senate in 1988, came out this weekend and said "...it's been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year." It's one thing to be wrong on the facts - there have been 2 confirmations in the last 80 years during presidential election years, to zero rejections. But to neglect the most recent example of an election year confirmation when you yourself were in the Senate at the time? What is he thinking?

I also think the basic politics of this are probably not as favorable for Republicans as they'd like to believe, similar to shutting down the government. They can make all the disaster references they like, but the fact of the matter is Obama's approval numbers are right about where Reagan's were during his last year in office. And I think it's been pretty clear in recent months that Obama's felt pretty liberated by the lame duck role, and is more than pleased to spend his time going off on Republican obstructionism whenever the chance presents itself. He doesn't need their help anymore.

And, as others have noted here and in the election thread, there are a bunch of Republican Senators in competitive races right now that aren't going to be helped by this. There's no reason McConnell and Co. couldn't filibuster later, and let people like Kirk and Toomey strategically defect if it helps them win re-election, as the D's still won't get to 60. Now they have to either enforce message discipline and disadvantage some very vulnerable seatholders, or they look like they're backpedalling.
Well look, the Republicans think (perhaps unwisely) that they have an opportunity to get somebody like Scalia nominated to fill the empty seat. The Republicans are saying that the likelihood that they will confirm Obama's nominee is equal to the likelihood that Obama will nominate somebody like Scalia. What do you think that the Democrats would have done if the positions had been reversed?

[Mike Corey]

A brief aside from the replacement/political chatter to add the following:

As a law student, and now as an attorney, I always looked forward to reading one of Justice Scalia's opinions. It has been said widely and will continue to be said widely, but the man's command of the English language was absolutely tremendous. My writing improved by reading his own, even though there was seldom a conclusion upon which he and I would agree.

A few years ago, he was asked how he vetted law clerk applicants. He noted the importance of their law school. An exception had been forced upon him with his first clerk class, which he had inherited from his predecessor. This class included someone from Ohio State.

“I wouldn’t have hired Jeff Sutton,” Justice Scalia said. “For God’s sake, he went to Ohio State! And he’s one of the very best law clerks I ever had.” Sutton is now an esteemed judge on the Sixth Circuit Court of Appeals (which sits in Ohio).

Shortly after Scalia's remarks, Scalia visited Ohio State. I was a first-year law student at OSU at the time, and had the opportunity to hear him speak in person. His most memorable comments for this liberal law student were about his passion for reading and writing, and how the former had made him so good at the latter. Indeed, he advised us all, if you want to be a better legal advocate, legal thinker, and legal writer, read as much as you can. Read anything and everything worth reading. Literature. History. News. Poetry. And so on and so forth.

It's not the most shocking advice in the world, but from a writer and thinker of his caliber, it meant a great deal to me and to the rest of us.

[Chicago 1995]

The essence of Senator Schumer's and McConnell's comments is the same: there should not be a presumption of confirmation. Whether that presumption is manifest by blocking the process or voting down a fully qualified nominee on purely ideological grounds is superfluous. Substance over form is what is relevant in context.

I'd note that Schumer's comment was (1) hypothetical; and (2) included a way for him to get around it -- except in extraordinary circumstances. That's really different from Obama shouldn't even nominate anyone and we'll reject -- not even consider -- anyone he nominates, which is where the GOP is now. The GOP isn't challenging the presumption of confirmation, it's standing it on its head. It's not even presuming rejection, it's rejecting without consideration. Compare that to what Obama did in considering the records of and voting against Roberts (wrongly, IMO) and Alito (more justifiably, IMO). Obama (and Schumer's hypothetical) allowed for rebuttal of a presumption of rejection rather than confirmation. The GOP's current position does not allow for that same rebuttal.

It's pure politics on everyone's part -- except that the GOP's apparently going to make one branch of the government here operate at substantially less than full strength for a full calendar year. Obama voted no on two judges who were clearly going to get confirmed. It had, actually, no real impact on the process. It's completely different from thwarting the process as we are apparently going to see here.

[snowdenscold]

Even less helpful for Republicans is that Chuck Grassley, who was also in the Senate in 1988, came out this weekend and said "...it's been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year." It's one thing to be wrong on the facts - there have been 2 confirmations in the last 80 years during presidential election years, to zero rejections. But to neglect the most recent example of an election year confirmation when you yourself were in the Senate at the time? What is he thinking?


I'm not sure about the other confirmation, but with the Kennedy confirmation, not only was he nominated in November the prior year, but the whole process for that open seat started the previous June, since Kennedy ended up getting the Powell seat originally intended for Bork.

So I think that's why the Republicans repeating the "80 year practice" mantra don't include it. While technically true, it's a pain to try to do footnotes during sound bites, haha (and of course, the validity or reasonableness of this particular '80-year-practice' argument is for another day/board...)

[swood1000]

I'd note that Schumer's comment was (1) hypothetical; and (2) included a way for him to get around it -- except in extraordinary circumstances. That's really different from Obama shouldn't even nominate anyone and we'll reject -- not even consider -- anyone he nominates, which is where the GOP is now. The GOP isn't challenging the presumption of confirmation, it's standing it on its head. It's not even presuming rejection, it's rejecting without consideration. Compare that to what Obama did in considering the records of and voting against Roberts (wrongly, IMO) and Alito (more justifiably, IMO). Obama (and Schumer's hypothetical) allowed for rebuttal of a presumption of rejection rather than confirmation. The GOP's current position does not allow for that same rebuttal.

It's pure politics on everyone's part -- except that the GOP's apparently going to make one branch of the government here operate at substantially less than full strength for a full calendar year. Obama voted no on two judges who were clearly going to get confirmed. It had, actually, no real impact on the process. It's completely different from thwarting the process as we are apparently going to see here.
Do you have any doubt that if Obama nominated somebody like Scalia, that the Senate would confirm (if they could overcome the filibuster of the Democrats)? So all the Republicans want is a nominee acceptable to them. Isn't that their right? Can't Obama bring this to a close immediately by nominating such a person?

Edit: and why do you call Schumer's comment "hypothetical"? Are you implying that he wasn't describing exactly what he intended to do?

[Mike Corey]

Do you have any doubt that if Obama nominated somebody like Scalia, that the Senate would confirm (if they could overcome the filibuster of the Democrats)? So all the Republicans want is a nominee acceptable to them. Isn't that their right? Can't Obama bring this to a close immediately by nominating such a person?

Well, there's a wide chasm between a nominee being "acceptable" to them and a nominee being the nominee they want. I don't think it's fair or accurate to characterize the current Republican position as the former; Obama nominating Scalia reincarnate would be someone that was something quite more than being "acceptable" to the GOP. The Republicans would support a nominee they wanted. In normal times, an "acceptable" nominee would include someone like Sri Srinivasan. Is there any reason to believe the Republicans would support that nomination today?

An "acceptable" candidate was demonstrated by then-nominee Kagan. The Republicans that ultimately approved the nomination surely would have preferred someone that was not going to be a reliable left-leaning vote. But she was an acceptable nominee, so she gathered support (indeed, from a mere 5 members of the GOP).

To many Dems, then-Judge Roberts was also deemed an acceptable candidate to 22 of 44 Democratic senators. Again, he was surely not the nominee they would have wanted.

[swood1000]

Well, there's a wide chasm between a nominee being "acceptable" to them and a nominee being the nominee they want. I don't think it's fair or accurate to characterize the current Republican position as the former; Obama nominating Scalia reincarnate would be someone that was something quite more than being "acceptable" to the GOP. The Republicans would support a nominee they wanted. In normal times, an "acceptable" nominee would include someone like Sri Srinivasan. Is there any reason to believe the Republicans would support that nomination today?

An "acceptable" candidate was demonstrated by then-nominee Kagan. The Republicans that ultimately approved the nomination surely would have preferred someone that was not going to be a reliable left-leaning vote. But she was an acceptable nominee, so she gathered support (indeed, from a mere 5 members of the GOP).

To many Dems, then-Judge Roberts was also deemed an acceptable candidate to 22 of 44 Democratic senators. Again, he was surely not the nominee they would have wanted.
I guess "acceptable nominee" and "nominee they want" become the same when they feel that they have within their grasp the ability to both nominate and confirm, which they would have if they won the presidency and held the Senate. I imagine that there are those among the Republicans who look at Srinivasan as potentially another David Souter, who was a fully qualified and competent nominee but one about whom they knew too little and whose nomination they came to regret. The Republicans would probably want to know why they should settle for less than their own nominee, assuming they are confident of winning the presidency. What do you think the Democrats would do if the roles were reversed?

[JBDuke]

Time to shut this thread down.