The Political Battle Over Justice Scalia’s Supreme Court Seat Has Begun
It didn't take long for the political battle over the seat held by the late Justice Antonin Scalia to become another part of the 2016 political battle.
It didn’t take long after the news of the death of Justice Antonin Scalia late yesterday afternoon for the political battle over his replace to begin. Even before the news had been confirmed, conservative pundits were saying on social media that the Senate should refuse to confirm any nominee until the next President takes office, arguing that the American people should have the opportunity to have a voice in who will make an appointment that could shape the American legal and political landscape for a generation or more. Shortly thereafter, Senate Majority Leader Mitch McConnell made clear in his own statement on Scalia’s death that the Senate should not consider a nominee selected by President Obama, Iowa Senator Chuck Grassley, the Chairman of the Senate Judiciary Committee, agreed with Senator McConnell and argued that it has been ‘standard practice’ for the Senate to not confirm Judicial nominees during an election year. Given that McConnell controls the Senate calendar and Grassley heads the committee that would consider, or decline to consider any nominees, it’s highly likely that they could bring about this result if they so desired. In addition to the Senators, each of the Republican candidates for President said during last night’s debate that the Senate should decline to confirm any Obama nominee to fill Scalia’s seat. President Obama, meanwhile, made clear during his statement last night on Scalia’s death that he intends to appoint a replacement notwithstanding Republican protestations, arguing that he has a responsibility to do so as part of his duties under the Constitution, and Democratic Presidential candidates Hillary Clinton and Bernie Sanders blasted Republicans for the suggestion that they would block any nominee until after the election in November. What all this means, of course, is that the political battle over the Supreme Court is about to shift into high gear.
Republicans have argued since last night that confirming Supreme Court appointments in election years is a rarity and that the appropriate thing to do in this case would be to defer action until a new President is in office and the American people have had a chance to speak. As Amy Howe notes at SCOTUSBlog, that assertion isn’t entirely true, although the instances in which a nominee was confirmed in an election year have generally been cases in which the Senate was controlled by the same party a the Presidency:
The first nomination during an election year in the twentieth century came on March 13, 1912, when President William Taft (a Republican) nominated Mahlon Pitney to succeed John Marshall Harlan, who died on October 14, 1911. The Republican-controlled Senate confirmed Pitney on March 18, 1912, by a vote of fifty to twenty-six.
President Woodrow Wilson (a Democrat) made two nominations during 1916. On January 28, 1916, Wilson nominated Louis Brandeis to replace Joseph Lamar Rucker, who died on January 2, 1916; the Democratic-controlled Senate confirmed Brandeis on June 1, 1916, by a vote of forty-seven to twenty-two. Charles Evans Hughes resigned from the Court on June 10, 1916 to run (unsuccessfully) for president as a Republican. On July 14, 1916, Wilson nominated John Clarke to replace him; Clark was confirmed unanimously ten days later.
On February 15, 1932, President Herbert Hoover (a Republican) nominated Benjamin Cardozo to succeed Oliver Wendell Holmes, who retired on January 12, 1932. A Republican-controlled Senate confirmed Cardozo by a unanimous voice vote on February 24, 1932.
On January 4, 1940, President Franklin Roosevelt (a Democrat) nominated Frank Murphy to replace Pierce Butler, who died on November 16, 1939; Murphy was confirmed by a heavily Democratic Senate on January 16, 1940, by a voice vote.
On November 30, 1987, President Ronald Reagan (a Republican) nominated Justice Anthony Kennedy to fill the vacancy created by the retirement of Louis Powell. A Democratic-controlled Senate confirmed Kennedy (who followed Robert Bork and Douglas Ginsburg as nominees for that slot) on February 3, 1988, by a vote of ninety-seven to zero.
As you can see, all but one of these confirmations came in situations where the Senate was controlled by the same party as the Presidency. The one exception to that rule, the confirmation of Justice Kennedy in February 1988 is itself exceptional because it dealt with a situation where the seat in question had been open since the end of the previous term of the Court in June 1987 due to the retirement of Justice Lewis Powell. President Reagan, of course, initially appointed Judge Robert Bork to fill the seat, but he was rejected by the Senate in an October 1987 vote after a particularly contentious confirmation hearing. Soon after, Reagan selected Judge Douglas Ginisburg after Bork’s rejected, but Ginsburg ended up withdrawing his name after revelations about marijuana use with students while he was a Professor at Yale. By the time Justice Kennedy was named on the eve of the 1987 Christmas holidays, there was little time left on the Congressional Calendar in 1987 to consider his nomination, thus pushing hearings and a vote to early 1988.
Additionally, as Howe notes, there have been instances in which a nomination during an election year was rejected by Senate, but neither one resulted in a long-term vacancy on the Court:
On September 7, 1956, Sherman Minton announced his intent to retire in a letter to President Dwight D. Eisenhower, and he served until October 15, 1956. With the Senate already adjourned, Eisenhower made a recess appointment of William J. Brennan to the Court shortly thereafter; Brennan was formally nominated to the Court and confirmed in 1957. The fact that Eisenhower put Brennan on the Court is inconsistent with any tradition of leaving a seat vacant.
And in 1968, President Lyndon B. Johnson nominated Abe Fortas, who was already sitting as an Associate Justice, to succeed Chief Justice Earl Warren, but Republicans filibustered the Fortas nomination – principally in reaction to the Warren Court’s liberalism and ethical questions about Fortas, although objections were certainly also made that it was inappropriate to fill the seat in an election year. That filibuster prompted Homer Thornberry, whom Johnson nominated to succeed Fortas as an Associate Justice, to withdraw his name from consideration in October 1968, because there was no vacancy to fill. Moreover, the failure to confirm Fortas as the Chief Justice did not leave the Court short a Justice, because Chief Justice Earl Warren remained on the bench.
On the other hand, it is worth noting that there have been examples of long periods during which a Supreme Court seat was vacant for a year or more due to the inability of the Senate to provide the Senate with an acceptable nominee, as Gabriel Malor and Tierney Sneed both point out. During the Presidency of John Tyler, for example, there were two seats on the Court that were vacant for more than a year due to the fact that President John Tyler, who had succeeded William Henry Harrison after he died after only 30 days in office, often had difficulty getting his appointment through the Senate. In no small part, that may have been because Tyler was the first Vice-President to succeed a President in office and often had difficulty establishing his own legitimacy in office. More recently, the seat that had been held by Justice Abe Fortas was vacant for more than a year before Justice Harry Blackman was confirmed due to the fact that two successive nominees presented by President Nixon were rejected by the Senate. In this case, Justice Scalia’s seat would likely be vacant for well beyond a year if the Senate does indeed follow through on the threat to refuse to consider an Obama appointment. This would be unusual, but it would not be unprecedented, and in the end it would be up to the American people to decide how to treat the Senate’s decision to act in this manner.
If we were talking about almost any other Supreme Court seat, then it’s possible that we would not be seeing this battle. For example, if there were a vacancy in the seat held by Ruth Bader Ginsburg or Stephen Breyer then an appointment by President Obama would have little impact on the ideological balance of the Court going forward. In that instance, while some Republicans may object to consideration of a nominee in the hope that the next President would be a Republican, the argument that McConnell and Grassley would be making would be considerably less strong. Replacing Justice Scalia, though, has the potential to significantly change the ideological makeup of the Supreme Court for some time to come. The same would be true of the selection of a replacement for perennial swing vote Justice Anthony Kennedy. Given that, McConnell, Grassley, and others arguably have a good argument that the American people should have an opportunity to speak on who gets to make an appointment that could have a profound impact going forward given the fact that we are just some nine months from Election Day. In any case, since they obviously have the power to block the nomination, or to bring it up for a quick vote at which it would obviously be rejected, arguing about whether or not it is “right” or “wrong” depends entirely on ones pre-existing political biases. No doubt, this question will be polled in the coming weeks and it will be interesting to see how the American people feel, but I suspect that there will be a substantial number who will be sympathetic to the argument that it would not be appropriate for a lame duck President to make such a far reaching decision.
As a practical manner, it should be said that if the Senate leadership is truly united in declining to consider a nominee until after the Presidential election then there is little beyond public pressure that President Obama can do about the matter. The Judiciary Committee is under no legal obligation to schedule hearings on such a nomination, and the Senate is under no obligation to vote on it. Indeed, if such a vote were held it’s likely that it would be scheduled in the manner of a perfunctory vote on a motion to reject the nomination, a motion that would not have to pass the sixty vote threshold of a cloture motion, and such a motion would likely pass by a majority vote. Even beyond that, though, the Republicans control the Senate calendar and, except in exceptional circumstances, there is little that a Democratic nominee can do to force a matter to a floor vote. So, when McConnell and Grassley say that there will be no vote, we should take them at their word that there will be no vote. At that point, the only question will be what impact that decision, and the fact that the future of the Supreme Court is likely to now play a more prominent role in the Presidential election and the battle for control of the Senate, is likely to have on the election and how the American people feel about the issue of leaving a seat on the Supreme Court vacant for a longer period than normal due to the upcoming election.
It’s not Scalia’s seat.
It is Obama’s to give to whom he would like, with the Senate’s advice and consent.
He was elected to the second term as President, and not that it matters, but by a healthy margin. Nothing has happened to change that fact. And no where in the Constitution does it say we the people should stand-by for over a year while petulant Republican children stop their pouting.
Heads I win tails you lose. This is a no win situation for the Republicans. They are assuming that they will retake the White House – unlikely. They are also assuming they will retain control of the Senate but this move will make that less likely. More Democrats will show up to vote. Obama is not going to nominate a hard core conservative like Scalia but if he does nominate a moderate it would be in their best political interests to approve. If they don’t and wait until 2017 they may find themselves with a Justice Obama..The Democrats have already said they will use the “nuclear option”. So now the Republicans can have some input – in 2017 probably not so much.
Didn’t take long? The man hadn’t even been dead 12 hours before McConnell was issuing dictatums about the selection of his replacement.
Aside from being blatantly partisan, it was (and is) in incredibly bad taste. They should have enough human decency (which I concede is asking a lot from these people) to wait until after the funeral to crank up their usual bulllshit.
Honest to goodness, Doug, posts like this are exactly why you get so much guff from the peanut gallery.
It is one thing if Obama nominates someone for the Supreme Court and the Senate rejects them, even if it happens repeatedly and results in the Court only having 8 members for an extended length of time.
It is an entirely different thing for the Senate to preemptively deny the President even the opportunity to fulfill one of his Constitutional responsibilities.
This is a radical violation of established norms and it is precisely this kind of reckless demogoguery by Republican elites that has led us to where we our today.
Mike
@C. Clavin:
Supreme Court seats are not the President’s to give.
The Constitution gives the President the power to make an appointment. The Senate then had the independent power to accept, reject, or refuse to act on the nomination.
@MBunge:
Ultimately, if the Senate declines to act on a nomination it will be up to the voters to decide if that’s appropriate. My point is merely that it is entirely within their discretion and power to do so.
@Ron Beasley:
The really scary element there for Republicans is that, if that scenario plays out and the nuclear option is approved, you’ll almost certainly see, at a minimum, Ginsburg retiring soon thereafter, probably at the end of the 2017 term. Ruth has made it clear that she’s hanging on as long as possible until she can be replaced by another justice who’s as liberal as she is. Kennedy will hold out, but six years is a long time. Breyer is a tossup, but again 6 years is a long time.
They risk a 4-4 with a swing court turning into a 6-3 firmly entrenched liberal court.
Which is more than fine with me, but I suspect their base won’t like it one bit.
Which seems to be the point of the Senate’s hissy fit: the last gasp of the “ruining Obama’s presidency” strategy.
The problem: It’s an election year with Donald Trump as the GOP frontrunner. Right now, the arument is, “Can’t let this lame duck president decide something so important.” And that one might prevail for a while.
Until around July, when the argument will become less abstract, when the argument is that Clinton/Trump –neither of whom have been elected (or should be)– should pick the next SCOTUS nominee next year, rather than this year with Obama, who was elected twice and is currently serving in the office that does this particular task.
Better to let Obama get this pick, take that issue off the table entirely. Or congressional Republicans can shoot themselves in the foot again. I don’t care. I heard Obama’s going to nominate John Roberts for the slot anyway.
@Doug Mataconis:
Except we’re not talking about the Senate refusing to act. We’re talking about one man on one committee unilaterally refusing to allow a nominee to even be considered.
One man who, incidentally, is running for reelection in November. It’ll be used against him. Personally, on some level I hope they do dig in their heels. It’ll be the pyre their party finally burns on.
@Doug Mataconis:
Doug, do you get paid to generate clicks by being willfully stupid?
Let’s try some examples. No one has to testify before a House or Senate committee unless they’ve been subpoenaed. What if a President were to refuse to let any member of his administration appear at any hearing unless they’ve been subpoenaed? What if a President decided to fulfill his requirement to report on the state of the union by sending Congress a one line email that said “Everthing is peachy?” What if a President decided to pardon violent sex offenders, but only ones in states controlled by his political opponents?
What holds civil society together, Doug, are informal norms that prevent our interactions from devolving to a state of all-out war. You want to know where Trump came from, Doug? He came from people like you making excuses for this unpatriotic garbage.
Mike
What an idiotic statement by Doug. The American people did have an opportunity to speak — which they did in November 2012, when they re-elected President Obama to a term of office that runs through January 2017. EVERY decision that a president makes can have a profound impact going forward, so why should this one be singled out as somehow one the president shouldn’t have a hand in?
@Doug Mataconis:
Mitch McConnell disagrees with you — or at least he did in 2005, when he said:
“The Constitution of the United States is at stake. Article II, Section 2 clearly provides that the President, and the President alone, nominates judges. The Senate is empowered to give advice and consent. But my Democratic colleagues want to change the rules. They want to reinterpret the Constitution to require a supermajority for confirmation. In effect, they would take away the power to nominate from the President and grant it to a minority of 41 Senators. [T]he Republican conference intends to restore the principle that, regardless of party, any President’s judicial nominees, after full debate, deserve a simple up-or-down vote.”
Of course, that was when a Republican was president, so McConnell’s, um, interpretation of the Constitution may be somewhat more fluid now that the president is blac…er, a Democrat.
@MBunge:
New to this site, are you?
@Doug Mataconis:
Tomato, tomato.
It’s not Scalia’s seat. And it’s not Mitch McConnell’s. Obama is the duly elected official with the right to appoint. Period. If the Republican Party, allegedly the party of responsibility, chooses to abdicate responsibility there isn’t much that can be done. Hypocrisy is a bedrock of the GOP.
How intelligent people can support this bunch of ass-hats is beyond me.
@Rafer Janders:
Whether you consider it idiotic is irrelevant. Irs political reality. Whether it is practically smart will be up to the voters.
No, they don’t have anything close to a good argument. President Obama was elected twice. The American people have had the opportunity to speak on this issue. The Republicans can certainly make the argument, and sadly, I have to agree they almost certainly will be able to block any appointment. Whether those actions carry any significant political consequence is what the American people will have the opportunity to speak on in November.
On second thought though, in our hyper partisan world, much as we routinely argue over things like what is and isn’t a “fact”, I suppose it’s not wholly incorrect to assume that whether or not the Republican’s argument is “good” will largely depend on who it’s being made to. lol, hence the absolutely foreseeable pushback that observation is receiving here in the OTB comments section. 😉
@MBunge:
Personal insults directed at post authors or other contenders violate our Comment policies. Please act accordingly
@Doug Mataconis:
It’s political reality for Republicans. Find me an instance where Democrats have ever denied a sitting Republican president the opportunity to fill an open seat on the court.
They may have denied him the ability to seat the exact nominee that he wanted, but they have never prevented him from seating a nominee at all. This is actually pretty unprecedented, but you’re trying to pawn it off as being business as usual.
It’s not. It’s a whole new level of GOP bullshit.
@HarvardLaw92:
I think you will find that the Senate Republican Caucus will be united on this issue.
@HarvardLaw92:
Spare me.
If Ruth Bader Ginisburg died with less than a year left in the term of a Republican President, Democrats would not be so eager to let that lame duck President appoint her successor. To believe otherwise is to be incredibly naive.
@Doug Mataconis:
You’re seriously going to fall back on this? Petulant …
If you can’t take the heat, perhaps you should consider taking a break from the kitchen? Food for thought.
@Doug Mataconis:
It’s not a personal insult, it’s a comment as to the idiocy of your argument. If you want to hide behind “comment policies” to shield your poorly-reasoned and ahistorical arguments against criticism, well, no one can stop you, but don’t expect anyone to take you seriously if you do.
@Doug Mataconis:
Get back to me when it’s actually happened, which it never has.
“Well, they would do it too” isn’t a response. It’s a rationalization, but hey, that does seem to be the GOP way, so well played.
@Doug Mataconis:
Yes…they continue to be united in all things detrimental to the Republic. In their racism, xenophobia, mendacity, and misogyny as well.
I wish someone could tell me what happened to the GOP?
Maybe their intellectual leader, Donald Trump knows?
@HarvardLaw92:
I’d make the same suggestion to you. This is politics, this is how it works in the modern polarized environment. You and I may not like it, but to deny that it is true is to deny reality.
@Doug Mataconis:
They’ll never have to be when they have Chuck Grassley sitting in his committee saying “hell no, you can’t go”.
An amazing change in position from his attitude regarding Kennedy’s confirmation, but hey, we’re talking about the GOP. I’m not sure anyone should be surprised that hypocrisy is their go to position.
@Rafer Janders:
I refer you to the comments policy a well. Again, you may not like political reality. I don’t necessarily like it either. Don’t yell at me for pointing out the truth of how this is going to proceed.
@Doug Mataconis:
No, this is how it has never worked until now. You’re busily rationalizing your head off because you don’t want a liberal court. How it works, or should work, is taking a backseat to “I don’t want another liberal justice on the court”.
Rationalization – the GOP way …
@Doug Mataconis:
Senators Kirk, Ayotte and Toomey are pretty much in no win situations. Their views will almost certainly become a big part of their reelection fights. Looking at the makeup of the Senate Judiciary Committee though, it’s unlikely any of them will actually have to vote on a nominee … because no nominee will get past the committee. I could potentially imagine Graham and maybe Flake voting for a very non-controversial nominee (as if such a unicorn exists), but it’s very difficult to figure out who the 3rd Republican vote would potentially be. http://www.judiciary.senate.gov/about/members
@Doug Mataconis: So, we’re back to the ridiculous, ‘both sides do it’ claim. That didn’t take long.
@Doug Mataconis:
I think you have to come up with an example of Democrats playing this obstructionist game…otherwise you are talking out your both-sides-do-it-a$$. Again.
We are talking about pre-emptively putting a SCOTUS nomination on ice for over a year, before you even know who it is. Unprecedented in this century or last.
So this is the new norm? From now on the Senate should be expected to deny opposition party presidents their authority to “significantly change the ideological makeup of the Supreme Court”? Or does this arbitrarily only apply when a president has less than ~340 days left in office.
@Doug Mataconis:
Refer me all you want — and I repeat the same point about how seriously people will take you as a pundit if you have to hide behind a comments policy to defend the weakness of your argument.
You’re going well beyond pointing out how something may proceed to defending it, as when you said they “arguably have a good argument.” That’s not description, that’s advocacy.
@Doug Mataconis:
Hmm, I seem to recall that Thurgood Marshall left the court with a Republican president and a Dem controlled Senate. Dems might have kicked up a fuss, but they allowed Bush’s nominee to get a vote, and that Dem controlled Senate voted to confirm his nominee.
Question: at what point does this new “the president isn’t the president any longer, and the Senate gets to prevent him from exercising his prerogatives based on the expectation of partisan advantage” doctrine kick in during a president’s term?
If it’s political reality now, YOUR party has made it that way, which is why you’re getting the degree of pushback you’re getting. It’s blatantly self-serving.
The best thing would be for the Republicans and the president to meet and agree on a moderate and strong supporter of the Constitution and individual liberties. You can’t predict ahead how these people are going to turn out. I think that Judge Warren was chosen as a conservative. Look how that turned out to be a disaster. * And that Judge Roberts doing what he done.
Judge Judy would be good: tough, common sense.
All of this turmoil points up why these judges shold be elected to a six year term.
* I saw a bumper sticker the other day on an old pickup truck:
“Impeach Earl Warren ” I don’t think that there has been any political figure who has been so controversial. I remember as a child hearing everyone fussin’ and a cussin’ about “that dern Judge Warren”. They blamed him for everything, and even said he was a communist.
@Doug Mataconis:
Thurgood Marshall retired from the Court in 1991, when the Democrats held the Senate, and his successor Clarence Thomas, nominated by the Republican George H.W. Bush, was confirmed in October of that year, slightly more than a year before Election Day in 1992. So no, it’s only naive to believe that the GOP would uphold the norms of American democracy.
@HarvardLaw92:
By his own logic Mconnell is unqualified to vote on this issue until he is reelected
@Tyrell:
Just when I had begun to think you might not be engaging in satire …
@Tyrell:
I’m unsure whether it was intended or not, but thank you very much for adding some much needed levity to this discussion! 🙂 🙂 🙂
@HarvardLaw92:
THomas was not nominated in a Presidential election year, so the analogy is not directly applicable.
@MBunge:
Great point, but this “president gets to nominate judges” thing isn’t an “informal norm,” it’s just the norm.
The Constitution clearly states that the nominating and the appointing is the president’s job, with Congress in an “advise and consent” role. They can vote his nominee up (door #1), they can vote it down (door #2), or they can filibuster so no one votes (door #3). That’s their role.
Senate Republicans, not really being all that sharp, have basically bitten down hard on Door #3, and Doug is not incorrect when he says it’s in their power to do so. And honestly, this is the best approach for them. They can’t rightly say they’ll vote for or against his nominee before a name has even been put forth, lest they reveal any bad faith.
But they can promise the filibuster, citing this “next president” argument, and they might even get away with it for a few months. It is not an end game.
The end game on this strategy for Republicans is “Elect Donald Trump or get a liberal SC justice.” And well, good luck with that.
Doug Mataconis carries water for conservatives. News at 11.
I see the “Both Sides Do It” weak argument has evolved to “Both Sides Would Do It,” and there is no mention that the “political reality” and “partisan environment” is entirely one of the Republicans’ making.
But honesty, good faith, and accountability are kryptonite to the modern conservative intellectual.
@Tony W:
I was referring to Chuck Grassley, the head of the Senate Judiciary Committee. The way this is likely to proceed is that Grassley, as the head of the Judiciary Committee, will simply prevent any nominee that Obama advances from even being considered by his committee. It’ll never get anywhere near the entire Senate being able to vote on it, because Grassley will conveniently prevent it from ever happening.
Come to think of it, in that context it’s somewhat of a coup-d’etat. I’m pretty sure that the founders didn’t intend for one senator to overrule the president.
Perhaps Doug would like to comment on that concept?
@Doug Mataconis:
The election cycle had already begun in earnest, and you know that. You’re being disingenuous.
So 5 months is now the difference between it being permissible for the Senate to derail the president? Do we have a situation where it’s bad on December 31st, but ok on January 1st as long as it’s an election year?
I ask because we’d all like to be able to have a baseline going forward for this new reality.
@HarvardLaw92:
Please point me to the provision of the Constitution that *requires* the Senate to vote on a nomination. For better or worse it doesn’t exist, which is why the GOP would be able to pull this off if they want to. One can either accept that reality and wait to see what the voters have to say, or you can yell at me for pointing out a simple fact.
@Lit3Bolt:
Careful!!! Remember the comments policy!!
@Doug Mataconis:
Please point me to the section of the Constitution which empowers one Senator to overrule the president.
It’s one thing if the entire Senate refuses to consider a nominee. It’s entirely another when one senator is doing it, which is what we’ll have.
A distinction which, incidentally, you sidestepped addressing.
@Doug Mataconis: it is not illegal, just unethical and a breach of the spirit of their constitutional duties. In other words, business as usual for Republicans.
@Doug Mataconis:
We’re yelling at you for implicitly endorsing this strategy, not for pointing it out.
From last night’s debate:
https://www.washingtonpost.com/news/the-fix/wp/2016/02/13/the-cbs-republican-debate-transcript-annotated/
One question I really wish Dickerson had asked each candidate was what happens if a Dem wins the White House and GOP holds on to the Senate? If allowing a Democratic Party president to fill Scalia’s seat will have such apocalyptic consequences that every last one of them reflexively supports blocking any nomination for a year, why would that partisan calculus change if they fail to secure the presidency? Why, after a presidential election where they’ll have worked their base up to a fever pitch claiming the 2nd amendment hinges on this SCOTUS seat, would that base ever accept GOP senators allowing a president Clinton or Sanders to fill the vacancy?
@Doug Mataconis:
A very weak and silly attempt at misdirection — the presidential campaign had already begun in 1991 (just as the current presidential election campaign has been actively ongoing since 2015, even though the election isn’t until November of this year — or did you miss all those debates?). Really stupid argument.
Or are you actually arguing that had Scalia died in December 2015 instead of February 2016, that the Republicans would all be dutifully arranging an up or down vote on President Obama’s nominee right now….?
@James Pearce:
You missed door #4 – one senator who heads a committee will prevent the entire Senate from even getting the opportunity to consider doors 1 through 3. This is what will actually happen.
@Doug Mataconis:
I would guess that most people intuitively understand this but just so everyone, even Doug, is clear.
Doug is enthusiastically endorsing the principle that in our government, the only rules that apply are…
A. Technically abide by the letter of the law.
B. Win an election every two years.
Beyond that, Doug contends there are absolutely no rules, standards or norms by which our government should be run. And he’s not a Trump fan…why?
Mike
@Doug Mataconis:
The Constitution calls for the president to nominate and appoint SC judges, with the advice and consent of Congress.
Does an indefinite filibuster fulfill the “advise and consent” piece of Congress’s responsibility?
@HarvardLaw92:
I dunno. I’d consider any kind of procedural delay as part of door #3.
Bottom line is that we’re going to need a 9th justice. And chances are good that a Democrat will be the one nominating them. For all the talk about accepting reality, this is the reality that should be accepted before all others.
Waiting until the star align at some future time is not actually a plan.
@James Pearce:
I refer you to this article from the Harvard Journal of Law & Public Policy.
@Rafer Janders:
It’s is neither weak nor silly since that is precisely what we area dealing with here. If this were 2013 instead of 2016 it would be a very different story.
@Tony W:
Ultimately, that is a question for the voters to decide.
The fact that this deadlocked result is so likely is actually, in a way, another casualty of Senate Democrat’s absolutely abysmal performance in the last 3 election cycles. The fact is, as partisan as our politics has become, the next Supreme Court nominee (especially with the potential to change the ideological balance of the court) was always going to trigger the “nuclear option” of eliminating the filibuster even for SCOTUS appointments. If the Democrats were in control now, they could do it. If they win the Presidency next year and regain control of the Senate then will do it then. And if by chance the Republican win the Presidency and hold the Senate, the filibuster will also be history.
Bottom line, this crisis was pretty much guaranteed to happen sometime in the next couple of years. The only variable is which side was/is likely to end up on the “losing” end, and what specific arguments they would use to try to justify their absolutely predictable obstruction (yes, Doug is correct to point out that if there is a Republican President next year, Democrats will certainly do all they can to thwart his ability to nominate Justices they don’t like).
@HarvardLaw92:
I’m merely pointing out the fact that, in the current polarized political environment, it makes sense. The fact that both sides of the political aisle are reacting int he manner that they are is just another example of that environment.
… anybody who thinks that Democrats wouldn’t employ every imaginable procedural hurdle they could come up with to try to deny a President Trump or Cruz from nominating a replacement for Ginsburg or Breyer is being disingenuous.
@Todd: Yes, but what they need to do is for the Republican leadership in Congress gets together with the president in a room with good cigars (Cuban ?), well stocked with Kentucky bourbon, and sit down and look over some potential candidates. People who support the Constitution, are moderate, intelligent, down to earth, and do not have some hidden agendas.
Then they pick someone. The person may not be the president’s favorite, or the top choice of Congress. But someone they both can live with.
That is how things used to get done: the smoke filled back rooms. All it takes is some common sense and a little will power. Enough of this macho, theatrical, tough guy stuff.
@Tyrell:
Warren wasn’t all that controversial. Apparently you grew up in a John Birch household.
@Doug Mataconis:
Bottom line – take a position:
You either believe that Obama’s nominee(s) should be given the courtesy of an up or down vote in the full Senate, or you do not believe this. There is no in between position there.
So which do you believe?
@Todd:
Same comment as above – get back to us when they’ve actually done this. Meanwhile the Dems allowed an extremely liberal justice (Marshall) to be replaced with a known conservative ideologue (Thomas), WHILE THEY CONTROLLED THE SENATE.
This is not a “both sides do it” thing. This is a flat out example of Republican bullshit, nothing more.
@Doug Mataconis:
“They would do the same” is not a winning position.
If they HAD done the same, you might have an argument.
But they haven’t. You’re basing your argument on what MIGHT happen.
In other words, your position is weak.
And if 2016 is a high turnout election, the GOP might regret not settling for a center-left candidate of Obama’s choosing, because President Clinton, with a Democratic Senate (very possible in a high turnout election – especially against Trump or Cruz) might push through a 50 year old flaming liberal.
Addiitonally, a Democratic President with a Democratic Senate gives Breyer and Ginsburg the ability to retire. And Anthony Kennedy is 79 as well.
This next president might get three or four nominees.
@HarvardLaw92:
I’ve decried the partisanship and polarization in the American political system many, many times over the years. This is just another symptom of that problem, and the demand that one “take a side” is just another example as well, especially since “take a side” invariably means “agree with me or you are an idiot.”
I went back and re-read Doug’s post. In all fairness, mostly it’s a discussion of what is likely to happen, not advocacy or endorsement of that path.
However, Doug, this sentences does seem to cross the line.
Given that, McConnell, Grassley, and others arguably have a good argument that the American people should have an opportunity to speak on who gets to make an appointment that could have a profound impact going forward given the fact that we are just some nine months from Election Day. Had you said “can make an argument” I wouldn’t object.
In fairness to your commenters, Doug, can you see that it’s awfully easy to read this post as advocacy?
@Todd: that’s just plain wrong, and you know it. can you point to an instance where the Democrats held the senate and even threatened to do anything similar?
They have voted down nominees (Bork), and they have dealt (poorly) with allegations of poor behavior by nominees (Thomas), but they have always given the nominees their hearing and voted on them.
Democrats try to govern. It’s what they do.
@Doug Mataconis:
I would agree that Dems would not be eager to cooperate, but I have my doubts that they would be using the “the current president doesn’t really count” argument, which is an open attack on Article 2 Section 2.
Rather, I would expect the Dems to find reasons to shoot down the GOP’s nominee without attacking the president’s right/ obligation to choose nominees. Republicans love to challenge the very notion of a legitimate Obama presidency — in effect, this is an extension of birtherism, which is ultimately motivated by the view that Obama isn’t duly elected. The Dems do not reciprocate along those lines.
@Doug Mataconis:
Lol, no, “take a side” means stop hiding behind “well, both sides would do it” and acknowledge that only one side IS doing it. You don’t have to agree with me, but we’re clearly not going to allow you to pretend to be noble while implicitly supporting what the GOP is doing here. It’s not about agreeing with anyone – it’s about having the cojones to stop tap dancing and actually take a position. “Both sides would do it” isn’t a position – it’s a cop out.
Should we assume from this statement that you disagree with the Republican strategy here, and believe that any nominee Obama sends to the Senate should get an up or down vote?
@Jeremy R:
On th subject of the Republican base, the 2nd amendment, and SCOTUS, I hope the Democrats will start working on getting all Supreme Court Justices full Secret Service protection.
@Doug Mataconis:
You give your opinion here several times a day. Asking you to state your position in favor of or against the particular issue in question is hardly over the line of partisanship or polarization.
From Politico July 27, 2007:
Apparently Doug is living in the same delusional world as his parties leaders are.
The only things this Republican Congress has managed to do they did with Democratic help.
Facts no longer mean anything to Doug or his party.
The idea that this is all SOP is lazy and dangerous.
I’d prefer Doug took off his partisan blinkers…but that is naive.
@Doug Mataconis:
Was hoping there’d be a little more meat there. I know if I was going to engage on a near year-long delaying project, I’d want a little more in my quiver than “It doesn’t say ‘shall'” and “no vote means no consent.”
If I was a lawyer and this was a lawsuit, I’d say, “Sure, that’s enough.”
But this is politics. More will be needed.
@HarvardLaw92:
I think it’s a politically risky strategy, but it’s not barred by the Constitution. Whether or not it is wrong will depend on what voters think.
@Doug Mataconis:
Wow. And just a few of your comments back 2015 would have been ok! Oh, wait, that was when you were trying to dodge HL’s comment pointing out your hypocrisy citing Thomas’ confirmation.
But we get it. A president can expect the senate to vote on a supreme court nominee but only if he nominates him or her in the first year of his term.
Talking about moving the goal posts in one comment thread.
@James Pearce:
As far as the politics of this goes, that is ultimately for the voters to decide, not any of us.
@Ben:
Look on the bright side, at least it keeps him from attempting to practice law again.
Not a SCOTUS nomination but Miguel Estrada was never given an up or down vote in the senate. The democrats filibustered and he eventually withdrew his name-after almost 2 years.
Sorry but I don’t believe for a second if it was a GOP president and democratic senate that they would act differently.
@gVOR08: Thanks for your reply. Not a JB household. My parents were strictly against segregation and very progressive, for that time and locale. We were never allowed to run down anyone.
The people doing all the fussin’ about Judge Warren were neighbors and preachers.
@Just Me: You’re right, and as soon as Obama nominates someone with absolutely zero judicial experience at the local, state and federal level to fill Scalia’s seat I’ll personally fly to Washington to protest.
And I’d do the same if he did so with the US court of appeals.
Conservatism is a political theory that favours tradition. This path being taken by the Republican Senate flies in the face of tradition.
Today’s Republican Party pursues radical economic ideas, radical foreign policy, ignores empirical data, and has turned its back on traditions for years now, the last 18 hours is simply the most egregious example.
The link between the Republican Party and Conservatism is completely, and perhaps irreparably, severed.
@Doug Mataconis:
You’re still tap dancing. Do you agree with this strategy or not? These are not difficult questions.
@Doug Mataconis:
Ah, 2007, back when it was liberals who didn’t like Roberts…
And I hate to say it, but I have to agree with Todd. There should be less “Democrats would never do that,” because it’s not true and it’s not all that admirable. You think Obama is playing the righteous victim right now? Has he ever played the righteous victim?
@Doug Mataconis:
It’s not the same argument:
1. Schumer was claiming that Bush’s nominees had lied to the Senate about their intentions.
2. Schumer didn’t claim that the process of choosing a nominee should be suspended due to the timing of an election.
Article 2 Section 2 doesn’t say or imply that a president loses the authority to appoint justices as his term ends.
In contrast, we don’t need a constitutional provision to tell us that a prospective justice should not lie to the Senate during his confirmation hearings. Schumer’s claim may or may not be true, but it was specific to a president’s alleged track record, not a challenge of that president’s legitimacy.
There is a difference between using procedure to block something and claiming (falsely) that a president lacks the authority to take action, and that difference isn’t trivial. As usual, the GOP is arguing that Obama isn’t a “real” president — when Democratic presidents win elections, the GOP response is to attempt to nullify them instead of accepting the will of the voters.
@Just Me:
Somewhat different than never allowing it to even get out of committee
@Doug Mataconis:
Well, I am a voter…..
And I think of all the other voters I know, some more partisan than others, most not that partisan at all, and this strategy just doesn’t scream “winner.”
@Doug Mataconis:
I wonder where it is in the Constitution that citizens elect Supreme Court justices… I wonder where the `I vote on issue X`, line appears on the ballet when we elect our Representatives, Senators and Presidents. From what I can tell, and probably most political scientists would agree, is that untangling the individual intents of millions of voters based on a fuzzy, aggregate proxy of who they elect is a fool’s errand but one you seem to be proposing.
I’m pretty darn sure the framers of the Constitution were generally not in favor of open election of SCOTUS justices, else they would’ve written it into the document. Nowhere does the document hint that vacancies should only be filled in three out of four years.
@HarvardLaw92:
i would prefer if the Supreme Court appointment process, and judicial appointments in general, was not so politicized, but I do not know that there’s any way to turn the clock back.
@Doug Mataconis:
Damn. That’s a weasel’s answer.
@EddieInCA:
That’s because the only acceptable answer in the opinion of a partisan is “You’re absolutely right.”
I have my own opinion, you may not like it but that’s not really my problem.
@Doug Mataconis:
The only acceptable answer is, truthfully, that a president’s nominees deserve the courtesy of an up or down vote in the entire Senate, regardless of which party controls both bodies. Anything else is partisan crap.
Allowing Thomas, perhaps the most spectacularly unsuited justice of the modern era, to be confirmed to the court turned (and still turns) my stomach, but allowing the vote was the right thing to do. Whomever Obama nominates for this seat deserves the same courtesy. The GOP will never allow that, because that nominee will be so spectacularly qualified for the court that they’d have no defensible reason to vote no.
Frankly I’m amazed that someone who spent years in love with the law (and nobody sweats out three years of law school unless they do) is taking such a milquetoast “eh, whatcha gonna do?” non-position on this.
@HarvardLaw92:
Did you feel the same way when Senate Democrats were using the filbuster to prevent Bush appointees such as Miguel Estrada from receiving a final vote?
@ Doug
The voters (of which I am one) already decided. We elected Obama in the last election. He is the President until the next one is sworn in. Now the Senate is free to debate, and perhaps take a pass on the nominee he puts before them. But to declare that they won’t even consider an Obama nominee (with the added touch of class of making said declaration before Scalia’s body is cold) is simply a rejection of the democratic process, placing the pursuit of power above the good of the country.
This is simply another effort by “principled conservatives” to reject the will of the people, which was clearly stated not once, but twice, when Obama was elected.
@HarvardLaw92:
Ted Cruz got his JD at Harvard and later taught Supreme Court law at UT-Austin.
(Point being: Lawyers disagree.)
@Doug Mataconis:
While you’ve finally stumbled across an example of something that both parties actually do, no, I think the filibuster should be disallowed with respect to judicial nominations entirely, from district courts all the way up to SCOTUS. Up or down vote, nothing more, and nominations go directly to the Senate. Committees may voice an opinion but they should have no ability to derail the process.
Can you say the same?
@James Pearce:
Teds a sociopath, but he’s also a highly talented attorney. I have my doubts that his position on this issue will be as ambivalent.
@Gustopher: Look, we’re on the same side here. I think it’s preposterous that Republicans have the gall to flat out refuse to even consider an Obama nominee … but I understand it. Replacing Scalia with someone anywhere to the left of Kennedy (which any Obama nominee would surely be) would be a huge blow to their long-term agenda. Of course they are going to use every method at their disposal to fight it.
I think it’s wrong, I think it’s against the spirit, if not the letter of the Constitution, and I think that Democrats should do everything in their power to ensure that Republicans pay as large a political price as possible for their obstruction.
However …
To pretend that most of the people commenting this thread wouldn’t be writing frantic letters to their Senators demanding that they do anything in their power to deny President Cruz the opportunity to replace former Justice Ginsburg is just not reality.
Just because there is potential for both sides to be hypocritical doesn’t make the side currently doing it any less wrong. But come on, let’s not be so partisan as to pretend that if the situation was reversed we’d just calmly lament “kind of sucks, but you know, that’s what the Constitution says my Senator has to do.”
@Doug Mataconis:
Totally different context, man.
At least with Estrada, we knew who we were supposed to filibuster. Republicans right now are promising to filibuster whoever and, while that may their right, it’s not exactly “business as usual.”
(But I suppose it could be.)
@anjin-san: Yes, this. Presidents are elected for 4 years, not 3. Just because Senators don’t feel like they are stealing money when they do no work in an election year doesn’t mean that the President should be wasting their last year as well.
If the term of office is 4 years then McConnell and Grassley are flat out wrong. No serious person could suggest that the founders only wanted a president to be in office 75% of the time.
@Doug Mataconis: The voters did decide – in 2012
@Tony W:
And they are in the process of deciding again. Republicans appear intent on gambling on that decision. Whether they succeed is something I cannot predict.
@Todd:
That, basically, is my position here.
In a sane world, Grassley and McConnell would realize that taking the unprecedented step of delaying a nomination until after the November election would be extremely unwise.
Right now, Democrats engagement and enthusiasm is much lower than it was in 2008. You want to see Democrats regain a sense of urgency and collectively bust their humps to GOTV in November? Deny the President a SC nomination and have an open spot on the Court come November.
If they follow this plan, they almost certainly elect President Clinton *and* give her 50+ Democratic votes in the Senate. That doesn’t prevent filibusters entirely, but it does allow Clinton to get the bulk of her nominations through. And you can bet that enough of Senate Democrats and their staffers remember 2009 first hand and understand how fleeting a Democratic Senate majority can be.
@Doug Mataconis
I think Doug is correct about how this is going to play out. Though I think his argument that the GOP’s obstruction here is somehow putting it to the people to decide is specious, the Democrats would be wise to put his theory to the test.
I’d be cutting commercials tomorrow in every state where a vulnerable Republican is running for reelection, each stating clearly that a Republican Senate and a President Cruz will result in more Citizens United decisions and Voter’s Rights erosion. Bring Ginsberg and Breyer into it so it’s clear just what’s at stake.
A big turnout election will favor the Democrats. Make the Republicans pay for their decision.
@Doug Mataconis
First, decrying partisanship and polarization in the abstract is pretty meaningless, unless you actually decry it when that could cost you something (like now). Principles that always let you do what you want are, at best, convenient rationalizations.
Second, this strategy is setting up another McConnell own-goal because of his unwillingness to look more than one move ahead.
Does he seriously think Obama is going to passively sit by and just let the Senate not even hold hearings on his nominee? Personally, I’d expect him to start talking about the Senate’s “constitutional obligations” every chance he gets and then some. Meanwhile, I’d expect liberal surrogates to start beating the drums for a recess appointment because the Senate refuses to do its duty. And then the Republican base will insist that Senate Republicans have to block that by holding pro-forma sessions. Except then Harry Reid, Barbara Boxer and a few other Democratic Senators not running for reelection will hang around making quorum calls – aka most of the 21 Republican Senators running for reelection in 2016 have huge problems campaigning and fundraising because they keep running back to DC every 3 days…
Personally, I think Republicans would be better off making a deal to (slowly) confirm Sri Srinivasan (or someone similar). In fact, Srinivasan might be the best choice. He’s among the least liberal nominees they could expect a Democratic president to make, confirming him opens up a seat on the DC Circuit (and in a deal I’d expect they could get a promise not to fill that seat before the election) and, as a bonus, confirming him disrupts the three-judge panel currently reviewing the EPA’s Clean Power Plan. With the new Court, the EPA is likely to win in the end, but with the current stay, delaying appellate review will push back the EPA’s implementation dates.
This isn’t everything Republicans want and a pony, but these are concrete tactical gains in return for the tactical concession they’d be making. And they’d avoid the own-goal of letting President Clinton and a Democratic Senate decide on the next Supreme Court justice that sight-unseen obstruction will make more likely. Unfortunately for them, McConnell is a gambler, so…
@Doug Mataconis:
I have to concur with many other, you seem to be willfully umm – slow here. They are most certainly not in the process of deciding again at this point. The decision is made on election day. Period
Dude, you are part of the problem.
One bright spot in what is shaping up to be a disgraceful episode is that I can feel the energy and engagement levels of Democrats rising as we speak.
@Lit3Bolt: “But honesty, good faith, and accountability are kryptonite to the modern conservative.
intellectual.Fixed that for you (I object to your implication that there are “intellectuals” in the conservative movement and that Doug would represent them even if there were).
@Doug Mataconis: Having read both your argument and HL92s, I come to the conclusion that the merits of his argument refute your assertion of the approach being a good idea. You’re free to differ, but…
@Doug Mataconis:
And yet, in this case, you advocate it as a good practice.
Choose a side, Doug!
@Doug Mataconis:
Pick one?
@Just ‘nutha ig’rant cracker: @Doug Mataconis: I wish I could make waffles so light and fluffy. Would you be willing to share your recipe?
@Davebo: Wow! That WAS nasty.
@Doug Mataconis: And they are in the process of deciding again.
By this logic, a President should not be allowed to nominate anyone to the Supreme Court after the first mid-term election of his or her first term and then again not after the second mid-term election if re-elected.
Could you please define the exact timeline of when a President is allowed to perform his or her Constitutionally-mandated responsibilities?
Mike
Nothing is stopping the President from doing this. However, the Constitution does not require the Senate to accept any nominee the President sends them. As I’ve said, the only real “check and balance” on this discretionary authority granted to the Senate is the will of the voters as expressed at the Ballot Box.
@Doug Mataconis:
How is the Senate refusing to provide advice an indication of “advice and consent”?
@Doug Mataconis: However, the Constitution does not require the Senate to accept any nominee the President sends them.
No one is suggesting the Senate has to accept any nominee. That is a deliberately deceptive and deceitful comment from someone who knows he hasn’t a leg to stand on in this argument.
This is about the Senate Majority Leader and the head of the Judiciary Committee declaring they won’t hold a hearing for ANY nominee before they even know who it could be. They are publicly stating that they are going to hamper the operations of the Supreme Court for almost an entire year for NO OTHER REASON than ideological partisanship. And you, a lawyer, are perfectly okay with that.
Mike
@MBunge:
And that’s what makes Doug’s assertion “both sides do it” wrong. This isn’t like the Democrats filibustering a SPECIFIC nomination, this is an advance declaration nobody will receive consideration regardless of qualification, philosophy, or even whether they like cats more than dogs. None of that matters to the Republicans. They’re willing to risk leaving the question open until after the election even though it could result in President Clinton nominating, and a Senate with a restored Democratic majority approving, the most liberal Justice in SCOTUS history, not to mention potentially paralyzing the High Court for nearly a year, simply to prevent Obama nominating someone.
Of course now Obama can nominate someone whose out-of-hand rejection by Republicans would only serve to energize the Democratic base and greatly increase the chances of a Democratic President and flip of the Senate. Had the Republicans chosen to do their duty rather than shirk it for perceived political gain, Obama could have appointed a relative moderate like Srinivasan who has already received unanimous approval from Senate Republicans, but they’re simply dead-set on burning the whole place to the ground.
About as nasty as Doug’s ridiculous “both sides do it” argument…
@Todd:
And how do they do that?
They only path I see is to ramp up turnout for all Democratic candidates.
Republicans have paid no political price for their obstructionism, and I believe, will continue to pay no price. There are no Republicans who will walk away from this, active base Republican voters agree with this tactic.
@Tyrell:
hahahahahaha ….
@al-Ameda: You’re probably right. Democrats are so inept politically that they likely won’t be able to take advantage of this … which means that yes, Republicans will again pay no price for their obstruction. Ironically, this observation makes the point most everyone is attacking Doug over, that Republicans are acting in a perfectly rational manner, all the more tenable.