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No rush to get Scalia replacement on Supreme Court

No rush to get Scalia replacement on Supreme Court

The legal implications of Justice Scalia’s death will be written by his successor.

Media discussion of Justice Scalia’s death and its implications for the public unions case Friedrichs v. California Teachers Association overstates the impact and misses the larger issue.

Before Justice Scalia died, it was very likely the Court would hold that it is unconstitutional for state law to require, or even simply allow, “agency shop” agreements compelling non-union members to nevertheless contribute to the union’s collective bargaining and related expenses.  Now, the Court will probably affirm the Ninth Circuit’s decision upholding agency shop agreements, but without setting precedent.

That is obviously a better outcome for the Union, but how long will it last?  The New York Times says “a major threat to public unions has evaporated.”  Reuters writes more temperately that “a 4-4 split is a likely outcome, which would hand a win to the unions as that would leave the lower court’s ruling in their favor in place.”

As I wrote recently in assessing some key cases, not winning isn’t the same as losing.  Conservatives hoping the Court would strike agency shop provisions will no doubt have another opportunity to litigate the point in the near future.

The determinative question is who will appoint Justice Scalia’s replacement.  If President Obama makes the appointment, or either Bernie Sanders or Hillary Clinton does a year from now, then conservatives may well lose a Friedrichs redux.  Cruz or Rubio making the appointment would likely mean a conservative win.

This is why the GOP leadership and Presidential candidates have staked such strong positions against affirming any nominee this year.

It is also why Linda Hirshman’s column in the Washington Post on Sunday was so staggeringly wrong.  Hirshman wrote:

the GOP might soon reconsider if they see the implications of refusing to allow Obama to replace Scalia: A divided court leaves lower court rulings in place. And the lower courts are blue. Nine of the 13 U.S. Courts of Appeals have a majority of Democratic appointees. That means liberal rulings conservatives were hoping the Supreme Court would overturn remain law. So if Scalia had cast the deciding vote on a case before he died, but the court rehears it and divides 4 to 4, that would leave the lower court decision in place. . .

The situation is not always good for liberals. Abortion, in a case that has not yet been argued, was subjected to the most onerous restrictions by the normally conservative Fifth Circuit. If the court deadlocks, most of the abortion clinics in Texas would close. On immigration, the court had announced it would take up another case from the conservative Fifth Circuit over whether Obama has the power to stop breaking up families by ordering the government not to deport millions of undocumented immigrants; the lower court ruling blocked Obama’s executive order, so a tie wouldn’t change that.

That’s why the effect of an equally divided court has enormous potential to strengthen Obama’s hand in dealing with the Republican Senate in picking a replacement: Even if the GOP blocks his nominee, the policy outcomes would be very similar to what they’d be if the court had a liberal majority. . .

Right now, McConnell sounds like he doesn’t recognize the peril his party is in. If Obama signals that he’s willing to take advantage of the situation by taking actions like passing new environmental rules or moving for rehearing in the pending cases, he’ll put pressure on the Senate by getting what he wants without his court pick. Two-thirds of the people in the country live in blue-court America.

This is nonsensical for two key reasons.  First and foremost, affirming a Circuit Court decision on a 4-4 split is relatively small potatoes because it does not create precedent.  It is true that cases that would have been reversed with Scalia part of a 5-4 majority now will not be.  But it makes no sense for the GOP Senate to rubber-stamp a liberal nominee so that no-precedent 4-4 affirmation would instead be a 5-4, precedent-setting decision for the liberal position.

Hirshman is right that “[e]ven if the GOP blocks his nominee, the policy outcomes would be very similar to what they’d be if the court had a liberal majority.”  But she again gets the implications backwards.  If the policy outcomes are the same, there is no good reason for the GOP to give those outcomes the imprimatur and permanence of a Supreme Court majority decision.

Second, whatever new extra-legal executive orders President Obama might promulgate will not reach the Supreme Court in 2016.  Litigation takes a long time.  The House’s suit against the Department of Justice regarding Fast Furious was filed in August 2012 and is ongoing.  The immigration case Hirshman mentions was filed in 2014.  In other words, the current Supreme Court term – and by extension when Justice Scalia is replaced and by whom – is almost certainly irrelevant to whatever overreach President Obama may engage this year.

Hirshman is just completely wrong.  The 4-4 splits that affirm the Circuit Courts are unimportant when next year or the year after a similar case will come up and the new Justice on the new Court will set the precedent.  President Obama’s executive actions will not be undone by the Court this year – they will be undone by the next President or the next Court.

Even if the GOP could benefit conservative causes by quickly affirming a new liberal Justice (which it can’t and shouldn’t), that is short-term thinking in a context where long-term thinking is everything.  One Court term simply doesn’t matter that much when deciding who will sit on the Court for maybe the next thirty years.

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Comments

I was thinking the EXACT same thing as what you wrote as I read her piece earlier. If the Republicans hurry up and just confirm any nominee Obama were to send up there, how is losing all those decisions 5-4 AND setting precedent any better than losing SOME decisions 4-4 WITHOUT setting precedent? How stupid does she think Republicans are? We’re not DEMOCRATS, after all.

If Obama put up an O’connor, a true moderate, then it makes sense to confirm.

Even today, Hillary Clinton has to be considered the odds on favorite to win the election. Demographics have only gotten worse since Romney and the border is still open.

But, if Obama nominates anybody on his previous short lists or anybody that’s had his name floated recently, then there is no harm in delaying the damage for a year.

What would happen in the Bush V Gore cases?
Remember those cases all bypassed Federal Courts and were taken by the SCOTUS directly from Fla SCOTUS.

There are so many questions around this thing.

A procedural one. Let us assume that Obama appoints someone, but the Senate just buries the person. ( OK that was abad pun. ) Now along comes President Carson. He appoints say Bill Pryor, but Obama’s appointee refuses to stand down.

Can the Senate hold hearings on Pryor while still leaving Obama appointee ashcanned? Is the Obama appointee even still around as an appointee once a new Congress takes over?

    MattMusson in reply to HandyGandy. | February 17, 2016 at 9:03 am

    As I was driving in this morning I was wondering how things would have been different if there was an autopsy that showed that Scalia had been murdered. Would that have triggered a constitutional crisis? It would sure make a good thriller novel.

    Sammy Finkelman in reply to HandyGandy. | February 17, 2016 at 3:39 pm

    Let us assume that Obama appoints someone, but the Senate just buries the person. ( OK that was abad pun. ) Now along comes President Carson. He appoints say Bill Pryor, but Obama’s appointee refuses to stand down

    That can’t happen. A president can withdraw a nomination.

    You could have a president pondering the withdrawal of a nomination, but not yet going ahead, and then the Senate maybe holding a midnight vote.. but most often the reason a president would want to withdraw a nomination is that his nominee has a difficult time gaining confirmation, so that sort of thing wouldn’t happen.

    The interesting question I have is:

    What if there is a recess appointment, and the nominee is not yet confirmed. Can a president withdraw a recess appointment even to an office from which he can’t normally fire someone?

    Examples would be a judicial office, or an office that someone serves in for a fixed term, like the National Labor Relations Board or the Federal Communications Commission, or the Federal Reserve.

    I suspect the answer is yes. But this scenario has probably rarely, if ever, played out.

    And another thing: I think if the Senate votes no, the person appointed to the position via a recess appointment is instantly out. I think this happened with Secretary of Commerce Lewis Strauss in 1958.

    This topic is more obscure than it should be.

      Sammy Finkelman in reply to Sammy Finkelman. | February 17, 2016 at 3:43 pm

      A recess appointment, by the way, is something separate from a nomination. Someone can be named to a recess appointment, whose name is not sent to the Senate for confirmation.

      I am not sure when or if this has happened. It might have with some Cabinet positions late in a presidential term. Secretary of State Lawrence Eagleburger (in 1992, or maybe only in 1993) or Secretary of the Treasury Joseph W. Barr might have been like that. Barr, I know, was a recess appointment (by Lyndon Baines Johnson, at the end of his term. LBJ, I see now also did this with the Secretary of HUD, but only the name (and signatuure) of the Secretary of Treasury is on the dollar bills. I think nobody ever heard of Joe Barr until after LBJ was no longer president.

      But I don’t know if it has ever happened that one person has been named to fill an appointment in a recess and another person’s name has been sent to the Senate for confirmation. Maybe some diplomatic positions?

      What if there is a recess appointment, and the nominee is not yet confirmed. Can a president withdraw a recess appointment even to an office from which he can’t normally fire someone?

      No, he cannot. A recess appointment is an appointment, and nobody can revoke it. Not the president and not the senate.

      Oops, this was supposed to go here:

      And another thing: I think if the Senate votes no, the person appointed to the position via a recess appointment is instantly out. I think this happened with Secretary of Commerce Lewis Strauss in 1958.

      No. The senate doesn’t get to vote on a recess appointment. Strauss was not one; he was only acting secretary pending his confirmation.

Another question is this. in the Freidrichs decision, as an example, could a person bring suit hopefully to get to SCOTUS? Or would said person have to wait until someone in another circuit brought suit?

    HandyGandy in reply to HandyGandy. | February 16, 2016 at 10:46 pm

    Sorry a bit of a blip there. Could a person from the nioth district bring suit?

      Sammy Finkelman in reply to HandyGandy. | February 17, 2016 at 3:51 pm

      The question is what would happen to the lawsuit. Could it be appelaed to the Supreme Court?

      I think two things: First the Supreme Court could set Freidrichs up again for re-argument instead of issuing a 4-4 decision. I think any 4 justices could do this.

      Second, there might be another case, where the plaintiff would attempt to distinguish the issue in some minor way, so there might be some logic by which the 9th circuit itself could rule differently.

      In any case there might be some other case in another circuit.

      What the Friedrich’s plaintiff wants is a departure from the status quo, but one where some opinions by the current court indicate that the court might want to go further.

As I write this, Drudge has a byline of Republicans weakening position to allow hearings on a nominee. If true this reminds me of “Braveheart” where the Scottish nobles feigned war to get more titles and land from the king of England. Have we been duped all these years with Republican leaders promising action in order to get a payoff for selling out? One comment above thinks a confirmation of a “moderate” now to avoid a radical choice under Hillary. If Hillary runs and wins then the fix is in and who needs the friendly Supreme Court if Republicans wobble on and the Queen of CLUBS rules?Another tactical retreat just backs us off the cliff. Settling for moderated rights just means the chains fall lightly on the citizens of this country.

    HandyGandy in reply to alaskabob. | February 16, 2016 at 11:03 pm

    Hearings are not a vote.

    So let’s assume Obama nominates someone in a month. Then the committee fights over whether or not to hold hearings. So finally when do they get to hold hearings? August. At that point don’t the arguments that it is next president who should appoint the empty seat become more pressing?

    One thing clear to me though, if it becomes clear that Trump will be the nominee. Will Graham and McCain vote to confirm Obama’s appointee just to spite Trump and deny having him appoint a SCOTUS?

      alaskabob in reply to HandyGandy. | February 16, 2016 at 11:36 pm

      I see huge amount of pressure to appoint and confirm a justice before October. Will the Dems liken this to “shutting down the government”? “Justice delayed is justice denied.” Starting hearings puts new variables into the mix. No matter what happens, the final point is will the Senate Repubs blink again under the glaring charges of racism etc etc etc?

        Milhouse in reply to alaskabob. | February 18, 2016 at 1:49 am

        It can’t be likened to shutting down the government, because nothing would be shut down. Justice would not be delayed, so it could not be said to be denied. The court can function as well with 8 members as with 9.

    Sanddog in reply to alaskabob. | February 16, 2016 at 11:14 pm

    I don’t see them backing down just yet. They’re moderating their public comments. Sure, let Obama send us a nominee. We’ll discuss it in the Judiciary Committee and decide if it is someone fit for the bench. If he sends someone acceptable, sure we’ll have a full Senate vote. They can say stuff like that with confidence because even the most “moderate” person Obama would nominate is so far left, they’d be immediately shitcanned.

      Estragon in reply to Sanddog. | February 17, 2016 at 5:58 am

      It makes far more sense to schedule hearings for any nominee, drag the process out as long as feasible, finally rejecting them in late summer when the election campaign will be getting heavy. That way we have the chance to expose the defects of the nominee and why we oppose them, rather than allowing Democrats to claim obstruction.

Right now the GOP is losing the public relations battle over the next justice. Watching the network evening news, the word “obstructionist” is repeated over and over. It has become the mantra of the Left (aka the MSM). The GOP should compile a list of five or ten very conservative, qualified judges, and then present them to Obama. And then hammer away every chance they get, that Obama refuses to nominate a conservative judge to replace a conservative judge. And go on every Sunday talk show and state that the Senate is willing to consider any one of those judges, but Obama won’t even talk with them. The GOP needs to fight the propaganda war, but I fear they won’t.

    Estragon in reply to MikeInCA. | February 17, 2016 at 6:21 am

    So you think the media will give us all that free air time to explain our side? Why would they do that, some sudden rush of an instinct for fair play?

    Whenever someone complains that we aren’t telling our story, it’s wrong. We have been doing a very good job of that in the last 20 years or so, but the media won’t air it. So those who watch Fox (11% of the TV news audience, being #1 in cable news still pales to the big 3 audiences) or CSPN will get our side. It’s not enough.

      MikeInCA in reply to Estragon. | February 18, 2016 at 2:33 am

      As usual, you don’t respond to what was said. But I’ll respond to your nonsense. Somehow you missed it, but every Sunday, Republicans are on the morning news shows. They’ve been on those for years. But for the last seven years Republicans chose not to fight back, because they don’t want to be called “racist” for opposing a black President. But that in it self is racist — if you can’t hold a black man to the same standards as a white man, you are a racist. It’s how Obama got elected, so many people wanted to show they weren’t racist by voting for a man of color (which is racist), and it’s how Obama keeps intimidating the Republican Congress. And it’s how he keeps intimating you.

      And your only advice is to give up. Sorry, but you’re still living in 1990, before the internet, before the newspapers began to die (thankfully), before blogs pushed back against the DC bubble. Thanks for being on the side of Democrats.

    HandyGandy in reply to MikeInCA. | February 17, 2016 at 7:11 am

    This is a lesson that must be learned from Trump. In charge he doesn’t care about public opinion.

    Sammy Finkelman in reply to MikeInCA. | February 17, 2016 at 3:57 pm

    The GOP should compile a list of five or ten very conservative, qualified judges, and then present them to Obama.

    There’s no reason not to do something like this. The constitution, after all, does say advice even though that’s mostly been ignored.

    Possible bonus: a Republican president would feel a lot of pressure to name someone from that list, and you’d have an election issue. Of course, that works both ways.

    And probably not every person on that list would be a super-originalist or textualist, since you’d want to get as many Senators as possible to go along, and you’d want to indicate to the public you were willing to compromise somewhat.

Obama must not be allowed to prevail.

I am a refugee from the HotAir FB debacle!

I guess no one has even considered what would happen to the Citizens United decision. We all know how much the DemocRATs hate that one. That is one of the first things that a liberal court would throw out.

If the GOP can’t hold ground on this until the next president is inaugurated, the party is done IMO.

Obama will get what he wants. A SCOTUS to the left of the 9th Circus. The Onion had it right. Even if he has to do it with some shenanigans it’s unlikely they’ll reverse it. Once on the court always on the court.

And another thing: I think if the Senate votes no, the person appointed to the position via a recess appointment is instantly out. I think this happened with Secretary of Commerce Lewis Strauss in 1958.

No. The senate doesn’t get to vote on a recess appointment. Strauss was not one; he was only acting secretary pending his confirmation.

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