Let’s set the scene: it’s nine months to the election, about eleven till the inauguration. The GOP controls the Senate, but there’s a Democratic president (in case you hadn’t noticed). The Supreme Court has been split between four liberal and four conservative justices and one swing justice. One of the conservative justices dies, Justice Scalia. President Obama has the right to nominate his successor, and that choice will entirely change the Court’s makeup to predictably liberal. And yet he needs the Republican Senate’s advise and consent to do it.

In an ideal world, justices would be “neutral” and the august and objective law would be the only guide they followed. But in the real world, justices each have a judicial attitude and philosophy that is reflected in decisions that tend to consistently and predictably lean to one side or other in their political consequences. Therefore no judge Obama nominates will be “neutral”; that person will be liberal if not leftist. That is a given.

The GOP Senate, tasked with giving or withholding advise and consent to the president’s SCOTUS nominations, has shown itself to often be unwilling to fight him; it’s one of the reasons most Republicans are so angry with them. But until now, he has only had the opportunity to choose successors to liberal SCOTUS justices, so his nominations have not substantially changed the makeup of the Court. Nor, until now, has the GOP had the majority when he has nominated a SCOTUS justice. Plus, to have tried to block one of his past nominations would have meant the vacancy would have lasted for a long time. Now the time is relatively short.

What will happen? Past experience, even recent experience, is little guide, since a parallel situation has not presented itself before. In fact, Jeffrey Rosen of The New Republic has pointed out that this situation is unprecedented since the 1800s:

1895 was the last time a Democratic president nominated a justice facing a Republican Senate (44 Republicans joined 40 Democrats and six senators of other parties to approve Grover Cleveland’s nomination of Rufus Peckham). Since then, every other Democratic president with a Supreme Court vacancy faced a friendly Senate.

Why am I quoting someone writing for TNR, from the liberal perspective? For the simple reason that Rosen was very prescient in considering the question, since he wrote those words on November 3, 2014, in contemplation of the possibility that the GOP might gain control of the Senate on the very next day. And that’s exactly what happened.

More from Rosen:

Given the already toxic atmosphere in Congress over the politicization of the judiciary, some scholars are already predicting that Republicans will refuse to schedule hearings on President Obama’s Supreme Court nominees if they’re not “acceptable” to the GOP.

But there’s a more optimistic possibility: Democrats can point to bipartisan Supreme Court confirmations, like justices Clarence Thomas and Antonin Scalia, where they have voted for nominees with whom they disagree. And there is next to zero historical evidence of gridlock causing extended vacancies…Even Obama himself…suggested there would be pressure for Republicans to approve a nominee, saying that intense media coverage of SCOTUS nominations “means that some of the shenanigans…I think are more difficult to pull off during a Supreme Court nomination process.”

Oh, you can bet there will be pressure—from both sides. But since this vacancy would not be for an “extended” time, that argument of the Democrats would have less force. It would be hard to effectively argue that a 4-4 Court till the end of Obama’s term would be some sort of tragedy. The real question is the intent of the GOP-led Senate, and whether they are committed to staying the course. The good news is that McConnell has just issued the following statement, after extending condolences to the Scalia family and praise for Scalia:

The American people‎ should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.

Let’s see if he can keep his word.

UPDATE 8:50 PM: And if that wasn’t complex enough, now there is some discussion of the possibility that Obama will try to make a recess appointment while the Senate is not in session. As this Washington Examiner article states:

The Senate is scheduled to be in recess until Feb. 22, giving Obama nine days to mull the idea. If Obama were to pursue that route, Republicans likely would argue that the Senate was out of session for too short a time for Obama to take advantage of the recess appointment power. But the Supreme Court has never said exactly how long a recess must be for the president to make recess appointments.

“It’s a live threat,” the aide said.

[Neo-neocon is a writer with degrees in law and family therapy, who blogs at neo-neocon.]


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