Republicans Risk The Senate And The Presidency By Refusing To Consider Any SCOTUS Nominee

Republicans are putting much on the line in their refusal to consider any Supreme Court nomination from President Obama.

Supreme Court Issues Multiple Rulings

Both The New York Times and The Washington Post make note today of the political risks that Republicans may end be taking if they stick to their position that any nominee selected by President Obama to succeed Justice Antonin Scalia will not be considered until a new President takes office Obviously, the announcement itself, and the move if the Senate ultimately ends up following through on it, is likely to please the Republican base and the pundit class, but given that we’re at the start of an election year in which control of the Senate will be in the balance as much as the Presidency itself Republicans obviously need to worry about doing more than just pleasing their own as this battle goes forward. In the past, the GOP has paid a price in the polls for actions that are perceived to contribute to gridlock such as the 2011 showdown over the debt ceiling and the 2013 government shutdown. For the most part, though, those events took place far enough away from elections that they didn’t really seem to stick in the minds of voters by the time the elections came around, a fact most aptly demonstrated by the 2014 elections just over a year after the shutdown in which voters overwhelmingly handed control over the Senate over the GOP. This time, with the GOP seeking to avoid losing its third Presidential election in a row and its fifth out of seven such elections since 1992 as well as maintain control of a Senate it holds by a relatively narrow majority, Republicans are faced with the possibility of their decision to block whomever the President selects for the high Court being an issue all the way through Election Day and beyond, with Democrats likely reminding voters of how many days it has been since Justice Scalia’s seat has been vacant and the Court issuing 4-4 decisions in important cases as a further reminder.

On the Senate side, Republicans are already facing an uphill battle thanks to their success in the 2010 midterms. Of the 34 Senate seats up in 2014, 6 of them are held by Republicans in states that President Obama won in 2008 and 2012 — Mark Kirk in Illinois, Ron Johnson in Wisconsin, Rob Portman in Ohio, Pat Toomey in Pennsylvania, Kelly Ayotte in New Hampshire, and the open seat currently held by Marco Rubio in Florida. In addition, Republicans are expected to strongly contest the open Senate seat created by Harry Reid’s retirement in Nevada, also a state President Obama won in the last two Presidential elections. As things stand right now. the GOP holds a 54-46 majority in the Senate, which means that Democrats would need to flip at least five of these as well as hold on to Reid’s seat in Nevada in order to gain control of the Senate. Alternatively, they could gain control by flipping five Republican seats and winning the White House, which means they could rely upon the Vice-President’s tie breaking vote to gain control of the Senate even if they are unable to maintain control of Reid’s seat. Right now, polling suggests that the Republican seats in Illinois, Wisconsin, and New Hampshire are the most vulnerable, while Pat Toomey and Rob Portman seem to be polling quite strong in their respective re-election bids and the potential Republican nominees in Florida are at least keeping the race competitive in the Sunshine State. If the public reacts negatively to the Senate’s refusal to bring an Obama Supreme Court nominee to a vote, it could have an impact in these other marginal Senate contests and push the upper house of Congress into the Democratic camp. That risk would arguably be enhanced if the Republican nominee for President ends up being someone like Donald Trump and Ted Cruz, both of whom seem likely to push independent voters into the Democratic camp nationwide.

The risks are similar on the Presidential side regardless of who the Republican nominee ends up being. As I’ve noted before, in order to win the White House, Republicans will need to navigate a difficult path through the Electoral Collage. First, they will need to win every state Mitt Romney did in 2012. While this might seem easy enough, the fact that states such as North Carolina and Indiana fell into Democratic hands as recently as eight years ago suggests that it could be more difficult than it seems if the party loses touch with voters that aren’t part of the Republican base. Second, even assuming they win all of Romney’s states, they will need to win Ohio, Florida, and Virginia, states that they have lost in each of the past three elections. While there are others paths to 270 Electoral Votes, they all involve paths that call for winning states that are far more difficult for Republicans. Finally, even with all those states in their pocket, Republicans will still be four Electoral Votes short, meaning that they’ll need a win in at least one more state, whether its New Hampshire, Iowa, Colorado, or Nevada. With a path to victory that demanding, anything that puts a must-win state at risk would prove fatal to the Presidential bid of any Republican, whether its Donald Trump or John Kasich.

The point in both these examples, obviously, is that if voters react negatively to the GOP’s strategy of denying a vote or any consideration to any Obama Supreme Court nominee, it could end up backfiring on the GOP in November in a way that would not be reparable the way the showdowns in 2011 and 2013 ended up becoming. Republican leaders are, no doubt, aware of these risks, but they are also aware of the risks of defying a Republican base that is looking for a confrontation with the Obama White House and clearly seems to see a fight over the potential successor to the man seen as the intellectual leader of the conservative wing of the Supreme Court as a hill worth dying on. For that reason, it will hard for people like Senate Majority Leader McConnell and Judiciary Committee Chairman Chuck Grassley to back down from the position that they’ve taken now that they’ve taken it, which suggests it may have been a political mistake for them to take a position like this so soon after Justice Scalia’s death was announced.

There is, of course, another alternative. Senate Republicans could decide to go through the motions of considering whomever the President nominates, with the idea being that the nomination would ultimately fail. Under this strategy, the Judiciary Committee could hold its hearings and eventually vote out the nomination, with the nomination possibly even going to the floor even if it receives a majority “No” vote in the committee. This is what ultimately happened to Robert Bork’s nomination in 1987, with the Senate Judiciary Committee rejecting him on a party-line vote but ultimately sending him to the floor. Once the nomination gets to the floor, the Senate could vote on it and, again, reject the nomination on a party-line vote. With the cushion the GOP has in the Senate, there were even be room for a handful of Republicans to vote in favor of the nomination for the sake of their own re-election bids if necessary. This process could be slow-walked through the Senate in a way that, by the time it was over, there would not be any time left on the Senate’s election year shortened calendar to consider a replacement nominee. Whether voters see this as any more legitimate than a complete refusal to consider the nominee is unpredictable, but it’s a fallback strategy that would allow the GOP to say they considered the nominee while still accomplishing the objective of leaving the seat empty until a new President can choose a nominee.

As I said my initial post on this issue yesterday, and in the follow-up, there’s no question that Senate Republicans have the power to deny the President a hearing or vote of any kind on his anticipated Supreme Court nomination. Put simply, there is nothing in the Constitution that requires the Senate to take a vote and certainly nothing that requires them to accept the nomination without question. Ultimately, though, whether or not what they are planning on doing is a good idea will depend on whether or not the voters approve of it. If they don’t, then Republicans could end up paying quite a high price for intransigence that, ultimately, is designed primarily to please an increasingly intransigent Republican base. Perhaps it will all work out for them in the end, or, perhaps, they’ll wake up on the day after Election Day to find that political fortune has worked against them.

FILED UNDER: *FEATURED, Barack Obama, Campaign 2016, Congress, Law and the Courts, Politicians, Presidency, US Politics, ,
Doug Mataconis
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 contributed a staggering 16,483 posts before his retirement in January 2020.

Comments

  1. Pch101 says:

    As I said my initial post on this issue yesterday, and in the follow-up, there’s no question that Senate Republicans have the power to deny the President a hearing or vote of any kind on his anticipated Supreme Court nomination.

    Refusing to provide advice and consent doesn’t sound like a constitutionally acceptable option, as it is a requirement of Article 2 Section 2. Appointing judges is a basic job requirement.

    The Senate’s refusal to consent based upon its alleged advice is another matter. If the GOP really cared about the constitution, then it would go through the motions of pretending to provide a fair hearing, but reject everyone.

  2. al-Ameda says:

    McConnell and his Senate crew will probably run out the clock on this.

    Thus far Republicans have paid no political or electoral price whatsoever for 6 years of constant unrelenting obstruction, and so I have very little reason to reason to believe that 2016 will be any different.

  3. Todd says:

    There is, of course, another alternative. Senate Republicans could decide to go through the motions of considering whomever the President nominates, with the idea being that the nomination would ultimately fail.

    This might have been possible had they not already telegraphed their true intention of denying President Obama any appointment at all. In their effort to appears “fair and balanced” most of our major media is willing to play along with even the most obvious of charades … unless the real truth is so obvious they can’t ignore it.

    Despite all the dissent in yesterday’s post comments, the one thing that that’s obvious here is that this is an absolutely no win situation for Republicans. On the one hand, a reasonable case can be made that denying President Obama this SCOTUS appointment is the rational (if repugnant) choice for Republicans.

    But just as many of the commenters yesterday were in denial about how their side would act in a similar circumstance, any Republican not in total denial would have to recognize the very likely political fallout (outlined in this post) that will result from their “rational” obstruction.

  4. Tony W says:

    Obama wins either way. Either controversial circuit court rulings stand or he gets to nominate the tying vote in the SCOTUS. Since he’s had 7 years to load up the circuit courts I think the President is in a very strong position.

    This reminds me of when conservative Clarence Thomas was nominated to replace liberal hero Thurgood Marshall. Fortunately the Democrats ran out the clock and denied Thomas the seat.

  5. @Pch101:

    That’s one way to look at it, but as Law Professor Josh Blackman notes, there’s nothing in the Constitution that requires the Senate to act.

  6. Pch101 says:

    @Doug Mataconis:

    You are confusing “refusal to grant a yea vote” with “going on strike.”

    I agree 1000% that the senate can reject everyone who Obama throws at them, But refusing to even consider the process is another matter entirely.

  7. @Pch101:

    That’s your opinion, and I understand it. As a matter of law, though, there is no substantive difference and no requirement that the Senate actually hold a vote.

  8. gVOR08 says:

    @Pch101:
    It may not be constitutionally acceptable, but, as with all things, even if it’s illegal, you can do it unless there’s an effective enforcement mechanism. What’s Obama gonna do? Move for impeachment of half the Senate? …You know, with a moments reflection, that didn’t sound as silly as I thought it would.

  9. Pch101 says:

    The substantial difference is that there SHALL be presidential nominees and there SHALL be advice and consent, per Article 2 Section 2. There is nobody else who is allowed to do this job, and that job is necessary if the country is to maintain the judiciary that is a requirement of Article 3.

    Imagine if the president said, “Ya know, this president in chief stuff, like, totally blows. I’d rather play golf and I’m not going to bother with it.” Do you think that it would be constitutional for a president to neglect a basic job responsibility that must be fulfilled but cannot be fulfilled by somebody else?

  10. bloated sack of protoplasm says:

    …it will hard for people like Senate Majority Leader McConnell and Judiciary Committee Chairman Chuck Grassley to back down from the position that they’ve taken now that they’ve taken it…

    All Chuckie has to do is invoke his own words from the past! (With a twist.)

    During a 2008 Senate Republican Conference hearing on “removing politics from the judicial confirmation process,” Grassley expressed his displeasure with what he called “unjustified slowness” of the confirmation process,..
    “Unfortunately, the Democrats Republicans have been employing some fast and fancy footwork to avoid their Constitutional responsibility…” Grassley said during the meeting, adding that “Democratic Republican leadership is putting partisan advantage ahead of the health of our judicial system.”
    http://thinkprogress.org/justice/2016/02/15/3749669/grassley-delay-supreme-court-nomination/

  11. An Interested Party says:

    As a matter of law, though, there is no substantive difference and no requirement that the Senate actually hold a vote.

    Using that logic, there’s nothing stopping the president from making a recess appointment as soon as he has the opportunity…

  12. Pch101 says:

    @gVOR08:

    It may not be constitutionally acceptable, but, as with all things, even if it’s illegal, you can do it unless there’s an effective enforcement mechanism.

    I’m already saying that the GOP will probably do it, anyway, and it will probably benefit from it vis-a-vis voter turnout from its base. I’m just noting that it probably isn’t constitutional.

    As a practical matter, there is nothing that Obama can do to force the senate to consider nominees, but that doesn’t make it legal.

  13. James Pearce says:

    @Pch101:

    Refusing to provide advice and consent doesn’t sound like a constitutionally acceptable option, as it is a requirement of Article 2 Section 2.

    We need to move off this, I think.

    The Republicans’ “advice” on Obama’s Scalia replacement: Don’t nominate anyone.

    And the thing about “consent” is that there’s an opportunity to say no. “No means no” and all that.

    If they don’t, then Republicans could end up paying quite a high price for intransigence that, ultimately, is designed primarily to please an increasingly intransigent Republican base.

    Conceding that this is, indeed, the design, does the base know that what they really want is a Scalia-like SC judge and not a year-long delay, a “new normal” of contentiousness when it comes to SC picks, and a blizzard of not-inaccurate attack ads in an election year?

  14. Guarneri says:
  15. Paul L. says:

    Who remembers Doug M repeating the last progressive talking point?
    Republicans Risk The Senate And The Presidency By…”shutting down the Government”

  16. Pch101 says:

    And the thing about “consent” is that there’s an opportunity to say no.

    Nobody is claiming otherwise. I’ve made that same point myself at least a half dozen times.

    However, there is a distinction between saying nay to a candidate after (pretending to) give him or her a fair hearing and refusing to even hear the pitch, the latter of which is the current tantrum du jour cooked up by the Republicans.

  17. Kylopod says:

    @al-Ameda:

    Thus far Republicans have paid no political or electoral price whatsoever for 6 years of constant unrelenting obstruction, and so I have very little reason to reason to believe that 2016 will be any different.

    First of all, it’s not clear they paid no price. Obama was reelected, after all. Moreover, as Doug pointed out, the shutdown occurred over a year before the 2014 midterms. All the polling evidence suggested the GOP were hurt by the shutdown; if it had happened in August of 2014, the electoral results might have been more noticeable.

    Remember, also, that it isn’t just obstructionism that makes the GOP look bad. The issue of Court appointments, normally so underrated despite its vast and far-reaching consequences, is now going to be front and center in the presidential race this year. This isn’t all bad for Republicans: I’m sure they can use it to their advantage, such as mobilizing gun-rights groups. But Dems can do the same on their side (with abortion-rights groups, for example), and I suspect they have the upper hand.

    I’m not saying the GOP is certain to fail. It’s very possible that early next year, President Marco Rubio will be installing a new justice who makes Robert Bork look like Earl Warren. In that case, the GOP’s obstruction will appear to have paid off.

    But that’s been the party’s basic strategy for the past seven years: a risky, costly strategy of doing everything in their power to stand in the way of the President’s agenda, in which their objective is simply to weaken the Dems enough to get themselves back into power. They already failed in their goal (stated bluntly by Mitch McConnell) to make Obama a one-termer, but they succeeded in winning back Congress, and they may yet succeed in winning back the White House. But as long as they fail in that last goal, they will have accomplished essentially nothing. In other words, it’s a strategy of risking everything for everything.

  18. @An Interested Party:

    Using that logic, there’s nothing stopping the president from making a recess appointment as soon as he has the opportunity…

    Actually, there is, see NLRB v. Noel Canning

    Which I wrote about here.

  19. James Pearce says:

    @Paul L.:

    “Republicans Risk The Senate And The Presidency By…”shutting down the Government””

    Link? (I think everyone was surprised Republicans didn’t pay a bigger price for that, but I guess John Boehner died for their sins so they didn’t have to.)

    Or just more “You don’t think like me, so you’re a (insert scary word here)?”

    Doug, progressive? Pish…

    @Pch101:

    “However, there is a distinction between saying nay to a candidate after (pretending to) give him or her a fair hearing and refusing to even hear the pitch, the latter of which is the current tantrum du jour cooked up by the Republicans.”

    Sure. But let’s not get too mad about it. This is the Republican leadership writing checks to their base that their bodies can’t cash.

    You know who should be mad? Conservative Republican voters. They may think they can withstand a year of SC nominee obstruction in an election year, and maybe they can, but it certainly won’t be as easy as they think it will be.

    So much risk, so little reward.

  20. James Pearce says:

    @Kylopod:

    In other words, it’s a strategy of risking everything for everything.

    Did you mean “everything for nothing?”

  21. Pch101 says:

    But let’s not get too mad about it.

    I don’t recall being angry about it. Was I supposed to be?

  22. Pch101 says:

    You know who should be mad? Conservative Republican voters.

    They’re always angry.

    What will anger them even more is if Obama, the Kenyan usurper of America, gets a judicial appointment that he wants.

    If you want to understand the right-wing populist mindset, then you need to look at things from their perspective. They judge their leaders by whether they put up a fight and call people names.

    Refusing to entertain nominees and squawking about Obummer! being the illegitimate president makes them happy. Behaving politely and attending to the business of government pisses them off. Stubbornness is a turn on.

    At this point, the establishment GOP can’t talk about getting back to business without upsetting these people and being targets of their wrath. It will be easier to just go along with it, lest they appear to be wimps who are afraid to stand up for conservative principles, etc.

    Fighting increases their odds of getting a Republican president, so it’s smart politics. It may not ultimately matter, but it can’t really hurt them.

  23. Paul L. says:
  24. James Pearce says:

    @Pch101:

    I don’t recall being angry about it.

    Getting a very “angry” vibe on this one, sure.

    One might read yesterday’s thread on the other post and come away thinking that Doug Mataconis, blogger, lawyer, and ill-advised Yankees fan, personally promised to beat up any of Obama’s nominees to make it easier for Donald Trump to nominate Dick Cheney.

    It probably should have been taken with a thimble-ful of salt.

  25. Pch101 says:

    Getting a very “angry” vibe on this one, sure.

    That’s entirely in your imagination.

  26. James Pearce says:

    @Paul L.: Not really one for subtlety, are you?

    From one link:

    “If this goes on, however, then perhaps political pressure will force some action here.”

    One might think of this as some qualified horseradish, an “if” and a “perhaps,” or one might think it’s being overly careful not to get too predict-y, but only you would mistake it for a “progressive talking point.”

    And from your second link:

    “Perhaps its easy for them to forget just how big a price they paid for that, but they may be about to learn all over again.”

    More “perhaps,” more “may.” But still no talking points.

    Not really that impressed, man. Sorry.

  27. Robert in SF says:

    I would not be surprised (but am disappointed) at the hypocrisy, if the members of the Republic Party decided that they didn’t have to faithfully execute their constitutional responsibilities by advising and consenting on a court nomination, but somehow found the balls to chastise the President for supposedly not doing the same, by somehow taking limited resources and budget to round up every single illegally immigrated person and route them immediately out of the USA.

    Just saying…if they want to claim he has no discretion on how to execute his job, then neither do they.

  28. An Interested Party says:

    Actually, there is, see NLRB v. Noel Canning

    So there will never be a time this year when the Senate will be in recess and not able to transact Senate business? Perhaps that will keep those vulnerable GOP senators from states Obama won twice from campaigning at home? All the better…

  29. Tyrell says:

    The President and leaders of the Senate could put their heads together and come up with a person that they all can agree on, even if it is not their favorite: someone who is honest, intelligent (but not some sort of egghead), and has some common sense.
    These would be my attributes list:
    A person who has worked their way up
    Preferably someone who has served in the military
    They have done manual labor
    They either hunt, fish, or bowl; and like Willie Nelson
    This person has been through the schools of hard knocks
    They have played a sport
    They like to have a cold one after work
    A person without an agenda, or preconceived notions
    What we don’t want is some eccentric, out of touch, aloof, and wishy-washy person

    If they all calm down and act sensible they can select someone that almost everyone can go with. That is how things get done.
    “They’re probably drinking coffee, and smoking big cigars” (“Folson Prison Blues”, Cash)

  30. grumpy realist says:

    This is how the United States of America dies, not with a bang but a whimper…..

  31. stonetools says:

    To be honest, there was a lot of heated talk about Doug siding with Republicans, largely because Doug said that the Republicans had a “good argument” that the seat should be filled by the “next” President. Of course, the Republicans had no good argument at all , and commenters pushed back on that. Doug also claimed that “both sides do it” (that’s a reflex for him since he has to pretend that both parties are equally bad, so that he can defend his “independent” status). Commenters pushed back sharply on that, too.
    The Republicans are swinging for the fences on this because they have to , now. They just can’t allow the demon Kenyan Muslim Marxist to pick a justice that would replace a conservative Supreme Court stalwart. Their base, revved up by Fox News and talk show propaganda, won’t allow it, to the extent that some of them may take up arms to stop any proposed compromise.
    The Republicans, therefore, have to stonewall at this point. The President and the Democrats can make them pay by portraying them as unreasonable obstructionists, and it’s clear that most of the media will be on board with this portrayal. I’ve yet to see a single major newspaper or media outlet (other than Fox News) agree with the Republican position on this. Heck, even conservative legal pundits are either agreeing that the President should get a hearing on his nominee, or are remaining silent. Even more important than winning the public opinion battle for the Democrats is to turn out their base. Barack needs to campaign relentlessly on this issue, along with the Democratic presidential candidates. This should be a clear winner for them.

  32. stonetools says:

    @Pch101:

    If the GOP really cared about the constitution, then it would go through the motions of pretending to provide a fair hearing, but reject everyone.

    The problem with a hearing is that any candidate Obama picks will be well qualified, and will likely demonstrate that they are well qualified. It will become crystal clear to those watching that the Senate will be rejecting the candidate for no good reason other than pure partisanship. Think Benghazi hearing, where it was made manifestly clear that the Republicans had no case to make. You will also get lots of sound bites of Republican senators looking idiotic as they try to score conservative talking points. All this will be helpful to Democrats as they try to turn out their base. The Republicans want no part of this, which is why they can going to resist giving any nominee a hearing. That, of course, will make them look even more unreasonably obstructive. Doug may be right that they don’t have ate give the President’s nominee a hearing, but the optics are bad. However the optics of a hearing will likely be even worse.

  33. Davebo says:

    @Doug Mataconis:

    Actually Doug, one of your fellow conservative lawyers seems to disagree with your analysis.

    Now, IANAL but she seems to be fairly well respected especially concerning constitutional law.

  34. MarkedMan says:

    There really is no point thinking about what the Republican strategy should be because their hands are tied. If a single Repub steps out of line and so much as entertains the notion of acting on a nominee they would be primaried into oblivion at the first chance. They know it and it must suck because they have a lot to loose. With a 4-4 court for the rest of his term Obama’s policy initiatives are a bit safer. And if we get Hillary (or Bernie) in and take back the Senate she can nominate anyone she wants. There is no way that the Dem leader would honor a judicial filibuster after the Repubs “cheated”. So the smartest thing the Repubs could do would be to negotiate the least bad option. But that’s not going to happen.

  35. James Pearce says:

    @stonetools:

    To be honest, there was a lot of heated talk about Doug siding with Republicans,

    And today, Paul L is saying he’s a progressive stooge. “Both Sides” Doug gets it from both sides.

    (This post is 1453 words of “This is what’s going on and this is why it’s important.” The post from yesterday was basically the same. All the time he was saying it was “up to voters now” he never once said what those voters should think. If one can’t appreciate Doug’s style, perhaps one can appreciate that he does, in fact, have a style.)

    @MarkedMan:

    If a single Repub steps out of line and so much as entertains the notion of acting on a nominee they would be primaried into oblivion at the first chance.

    That’s it. The GOP has reached that “Walking Dead” stage where the primary threat for Republicans is other Republicans.

  36. Pch101 says:

    @stonetools:

    I don’t think that the specifics of Obama’s would-be appointments have anything to do with it.

    This is more about political strategy for the election. The Republicans are in a bad spot, as the populist wing of their party has now become so petulant that it threatens to unravel the business-Dixiecrat coalition that was assembled under Reagan. (The establishment wing was accustomed to paying lip service to the social conservatives and throwing them just the occasional bone, but that is no longer working.)

    The GOP could really use a wedge issue to bring its constituents together, and now it has one. If the GOP ends up with the brokered convention that I expect, then there are going to be a lot of Tea Party types who are ready to throw their toys from the pram, and it will be necessary to convince them to vote.

    Attacking the legitimacy of a Democratic president has been a tool for GOP unity since Bill Clinton. When all else fails, the Republicans play the holier-than-thou card. (They dream of having a Democratic version of Watergate, and continually come up short.)

  37. Jen says:

    @Davebo: The President appears to have taken that option off the table himself. NPR is reporting that Pres. Obama will not appoint anyone while the Senate is out this week. Which means that the Senate, for the rest of the year, will have to go through the “no more than three days out” circus that they need to do in order to not be in formal recess.

  38. An Interested Party says:

    “Both Sides” Doug gets it from both sides.

    Perhaps he wouldn’t if he could at least be intellectually honest…

  39. Just 'nutha ig'rant cracker says:

    @MarkedMan: I think it’s too late for the Republicans to choose the least bad option because they have once again started running their mouths before their brains were engaged–a common shortcoming with them because they also tend to operate under the delusion the they are “the majority” [TM pending].

  40. Chip Daniels says:

    Part of the problem is it doesn’tseem that the Founders ever anticipated that an entire branch of government would go on strike and refuse to act.
    From what Doug wrote, it doesn’t look like there is any clause forcing any of the branches. to do much of anything. SCOTUS could just refuse to hear cases, POTUS could go on extended vacation, and Congress could just cash their checks without ever gaveling into session.

    The only remedy for the people is election, and there is exactly the problem.

    The GOP base has become a revolutionary insurrection, where they refuse to accept the legitimacy of opposition. They not only refuse to punish Congress going on strike they demand it.
    There isn’t any principle here other than “Rule Or Ruin”.

    They would destroy the village in order to save it.

  41. Davebo says:

    @Jen:

    for the rest of the year, will have to go through the “no more than three days out” circus that they need to do in order to not be in formal recess.

    Theoretically yes but in reality why? I think Obama sees this as a great wedge issue. A recess appointment would turn it against the Dems which is why I think he made the statement.

    Just give them enough rope and they’ll hang themselves.

    My comment was more to point out that there are a ton of actual practicing attorneys who have a better grasp of constitutional law and Senate rules to rely on regarding such issues.

  42. anjin-san says:

    @Chip Daniels:

    Congress could just cash their checks without ever gaveling into session.

    Well, they are not too far from this with tier current workload…

  43. Pch101 says:

    @Chip Daniels:

    Part of the problem is it doesn’tseem that the Founders ever anticipated that an entire branch of government would go on strike and refuse to act.

    That’s the key right there.

    The usual scholarly debates involving advice and consent include issues such as whether the Senate can play a role in choosing the nominees before the fact, and how much latitude the Senate has in rejecting nominees (vs. extending the benefit of the doubt to the president and his choices.)

    Nobody considered the possibility that the Senate would simply refuse to do its job for a year just because. It’s not as if there is anyone else to choose judges or that the Constitution allows us to not have a judiciary.

    The checks and balances system is predicated on everyone playing the role that he is supposed to play, and this ain’t it.

  44. David M says:

    @Pch101:

    Our system of government depends on the individual actors to compromise, the GOP is working to undermine the very constitution they claim to love so much. It’s not very big leap from Obama can’t get a justice confirmed in his final year to the opposition doesn’t get to confirm any judges to the opposition doesn’t get to staff the executive branch.

    It’s either compromise and confirm a judge, or take another step towards ending our system of government. Presidential systems require compromise or they inevitably end.

  45. Dumb Brit says:

    As I understand, there has been a majority of sitting SCOTUS Justices appointed by Republican Presidents for over 40 years now & it therefore seems about time that the Court should lean Democratic 5-4 for a while. A cursory count shows that since 1950 about 25 new justices have been appointed and the current split is 18R verses 7D!

  46. anjin-san says:

    @David M:

    Ironically, moder conservatives have become characters out of “Atlas Shrugged”… just not the ones that they think are the heroes:

    “You’d better get it straight that it’s not a bunch of boy scouts you’re up against… We’re after power and we mean it… “

  47. C. Clavin says:

    Just a thought…is pch101, actually Reynolds? The prodigal son returned???

  48. sam says:

    @Doug Mataconis:

    “Actually, there is, see NLRB v. Noel Canning”

    The Democrats can always put the quorum call torpedo in the water:

    [I]t looks as if the Democrats could call McConnell’s bluff.
    According to the currently posted schedule, the Senate plans to take a break from Friday, July 15 to Monday, September 5 and again from October 10 to November 11, presumably with pro-formas every three days (because the Constitution forbids either house to adjourn for more than three days without the consent of the other). So, on Monday, July 18, McConnell or one of his deputies shows up in the chamber, with another Republican to act as President Pro Tem, planning to meet and adjourn. But – surprise! – Harry Reid or some other Democrat also shows up and says, as soon as the session is called to order, “Point of order! Mr. President, I make the point of order that a quorum is not present.” (The presiding officer has no right to ignore that, but just for insurance Joe Biden could actually show up, too, in his role as President of the Senate.)
    Since there’s not merely no quorum present but no quorum in town, the pro-forma must adjourn: that’s the one action, other than compelling the attendance of absent members, either House can Constitutionally take with less than a majority.
    Having established that the Senate is then in recess, and does not have “the capacity to act, under its own rules,” the President makes a recess appointment. Now McConnell has ten days from the date of the last actual session (or unchallenged pro-forma) to round up his troops. If he can do that, the recess appointment becomes invalid, because the Senate was not in recess for at least ten days. No Democrat is inconvenienced at all, except the one guy to make the quorum call; since the pro-forma isn’t going to take any real action, there’s no need to show up. But forty-nine Republicans have to drag their sorry butts back to DC, just to say “Present.” And as soon as they go home, the Dems do it again.
    Not only does this put a serious crimp in the home-state campaigning of the Rs up for re-election; it makes the entire Republican Caucus a national laughing-stock, and makes the otherwise boring procedural story of the Senate refusing to do its job telegenic.
    At that point, McConnell has two choices:
    1. Keep playing the game, creating a great campaign issue for the Democrats and great heartache for his members facing re-election in Blue and Purple states;
    2. Fold and let the recess appointment happen.

    Mark Kleiman, Recess Appointment, Round II

  49. C. Clavin says:

    @sam:

    it makes the entire Republican Caucus a national laughing-stock

    Like they aren’t already????

  50. C. Clavin says:

    @C. Clavin:
    As if to prove my point…Rubio has an ad out aping Reagan’s “Morning in America”…only the first shot shows Vancouver…which everyone except for Republicans know is in Canada.
    Reagan really should have called it “Mourning in America”…as it was the beginning of a 30 year war against the middle class that has all but eliminated it.

  51. bookdragon says:

    @Doug Mataconis: Out of curiosity, as a matter of law, is congress required to do anything?

    I mean, would it be ok, in terms of constitutional law, for these to just keep drawing their paychecks and benefits for doing absolutely nothing whatsoever?

  52. C. Clavin says:

    Scalia may have had a brilliant mind…but he used it for evil.
    Heller, Bush v. Gore, Citizens United…all piss poor decisions that have wreaked havoc on the Republic.
    Recently he claimed the Constitution allowed the Government to favor religion over no religion…an absurd position. Put another way, he was endorsing superstition over rational thought and suggesting the Government do the same.
    He claimed to be an originalist…but invented all kinds of justifications that are no where in the text; eg. Hobby Lobby.
    It is funny to watch Republicans now wipe their pampered lily-white asses with the very document that the man they claim to honor claimed to love so much.
    If there is justice (pun intended) in this world then this episode will blow up in the face of Republicans and, hopefully, finally put an end to them. Then maybe we can find some real Conservatives who have something productive and constructive to offer the Republic.

  53. C. Clavin says:

    @bookdragon:

    is congress required to do anything?

    They have voted to repeal Obamacare, 653 times.

  54. Andre Kenji says:

    @C. Clavin:

    “Morning in America”…only the first shot shows Vancouver…which everyone except for Republicans know is in Canada.

    I think that he is talking about America as the American Continent, not the United States. He wants to be President of the whole continent. 😉

  55. C. Clavin says:

    @Andre Kenji:
    He shouldn’t be President of a book club.
    No one in that clown car should be.
    Trump would bankrupt it.

  56. @bookdragon:

    The only mandatory duties that the Constitution appears to confer on Congress are to pass a budget/spending bills and to received the State Of The Union from the President (although nothing in the Constitution requires POTUS to deliver the SOTU in the form of a speech to Congress)

  57. C. Clavin says:

    “Every day that passes with a Supreme Court below full strength impairs the people’s business in that crucially important body.”

    That was Ronald Reagan in 1988. Of course Reagan couldn’t get elected in today’s Republican party…so it may be a moot point.

  58. Pch101 says:

    @Doug Mataconis:

    Article 2 Section 1: “The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years…”

    When you read that, I think that it’s pretty obvious that “shall” means that there will be a president and that his/her term will absolutely be four years — we don’t have the discretion to not have a president or to alter the length of the term unless we amend the constitution. Nobody would dispute what “shall” means in that context.

    Just a couple of paragraphs later: “(The president) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court.”

    I’m curious to know what has prompted you to completely change the definition of “shall” within the course of a few paragraphs. One minute, “shall” is an absolute, defining items that cannot be disputed (is anyone seriously going to question the idea that the US constitution calls for a president who serves four-year terms?). Yet the next minute, “shall” is some sort of touchy-feely suggestion that doesn’t mean anything.

    I don’t think that the founders ever expected this sort of blatant revisionism. Perhaps we can take this to its logical conclusion and dispense with having the next presidential election altogether — the four-year term thing was just a suggestion (“shall” is meaningless, right?) and we can ignore it if we feel like it.

  59. Liberal Capitalist says:

    The GOP seems to have a tragic flaw in logic here…

    By whatever means or reasons, if they (the GOP in the Senate) choose not to confirm a Supreme Court nominee in the next 300+ days, their assumption is that they win, as their fevered dreams firmly believe that the next president will be a Republican.

    This, itself, is a serious mistake.

    The outcome may be that they trade the moderate appointment of President Obama to a progressive Justice appointment by President Sanders.

    Do they think they can block the appointment for the next 4 years and 300+ days?

  60. Jonathan says:

    @Doug Mataconis: Let’s say all the Supreme Court justices die tomorrow. Is it your opinion that the Senate could just choose not to vote on any new justices?There is no requirement to vote thus no requirement to appoint any new justices, but there is a requirement for the court to exist. How do you reconcile?

  61. gVOR08 says:

    @C. Clavin:

    Reagan really should have called it “Mourning in America”…as it was the beginning of a 30 year war against the middle class that has all but eliminated it.

    I regard Reagan as the most disastrous President since Buchanan. He put a pleasant, avuncular face on a basically repellent political philosophy and enabled everything that happened since. You can argue W was the worst, but without Reagan there would have been no W.

  62. C. Clavin says:

    @gVOR08:
    Well said.

  63. bloated sack of protoplasm says:

    @gVOR08:..I regard Reagan as the most disastrous President since Buchanan.

    Lest we forget. California Governor Ronald Reagan 1967-1975.

    Reagan was involved in high-profile conflicts with the protest movements of the era. On May 15, 1969, during the People’s Park protests at UC Berkeley, Reagan sent the California Highway Patrol and other officers to quell the protests, in an incident that became known as “Bloody Thursday,” resulting in the death of student James Rector and the blinding of carpenter Alan Blanchard.[82][83] Reagan then called out 2,200 state National Guard troops to occupy the city of Berkeley for two weeks to crack down on the protesters.[82] A year after “Bloody Thursday,” Reagan responded to questions about campus protest movements saying, “If it takes a bloodbath, let’s get it over with. No more appeasement.”
    The abduction (of Patty Hearst) occurred in February 1974. One of the SLA’s demands was a free food program. Patty’s father, Randolph Hearst, publisher of the San Francisco Examiner, arranged for such a project in Oakland. Governor Ronald Reagan responded to the long line of people waiting for free food: “I hope they all get botulism.”

    And who can forget United States Commander in Chief Ronald Reagan.

    “My fellow Americans, I’m pleased to tell you today that I’ve signed legislation that will outlaw Russia forever. We begin bombing in five minutes.”
    https://en.wikipedia.org/wiki/We_begin_bombing_in_five_minutes

    Personal note. I have given up my identity for Lent.
    Yet I remain a bloated sack of protoplasm.

  64. HarvardLaw92 says:

    @Doug Mataconis:

    That ruling established, among other things, that the Senate is in session unless it goes more than three days without activity, hence pro forma sessions – the Senate is presumed to have a quorum unless otherwise established.

    Which is why every retiring Democratic senator will be staying in DC to issue quorum calls. Good luck trying to run a Senate campaign when you have to hustle back to DC every three days to prevent Obama from opening a recess window.

  65. Just 'nutha ig'rant cracker says:

    @C. Clavin: I’ve been wondering the same thing. The tone and diction are both different from either sane Reynolds or bsc Reynolds though.

  66. Pch101 says:

    @Just ‘nutha ig’rant cracker:

    I don’t sound, think or act like the guy, so I must be him.