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The Coming Fight Over Justice Scalia’s Replacement

The Coming Fight Over Justice Scalia’s Replacement

What will the next steps be?

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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McDonnell will cave; Obama will get his nominee confirmed. You watch.

    mumzieistired in reply to dogbert. | February 13, 2016 at 11:38 pm

    McConnell won’t even have to cave. Obama will make a recess appointment.

      A recess appointment could certainly do some damage in the relatively brief time he/she would serve (until the end of the Senate session, or until voted on), but at least it wouldn’t be a lifetime appointment. I won’t be surprised if Obama appoints some outright commie (probably also black, muslim, and/or transgender or openly homosexual in the bargain) next Jan. 4th, as one of his parting shots at the nation he loves to hate, even as it heaps mountains of unearned privileges and accolades upon his corrupt, miserable self.

Humphrey's Executor | February 13, 2016 at 8:47 pm

Obama appoints himself and leaves Biden to run as the incumbent,

Recess appointment. No way will the Senate have the nerve or the guts to prevent it.

If al-Chicagi wasn’t campaigning for the UN General Secretary job, he’d appoint himself.

    gospace in reply to SeniorD. | February 13, 2016 at 11:54 pm

    If he makes a recess appointment- there is no way to stop it. Provided the Senate is actually in recess. The Supreme Court itself has ruled on his “recess” appointments when the Senate has said they’re not in recess, but he decided they were. The decision- the Senate has to say they’re in recess to be in recess.

I’m thinking the Republican senators need to start repeating this (or a similar) phrase every time they’re asked the question.

“I don’t see President Obama making a Supreme Court nomination to replace Justice Scalia before the end of his term. There hasn’t been a lame duck president in the last century who has attempted this kind of action.”

Then when he does:

“I don’t see President Obama’s choice of (name) as an appointee to the Supreme Court as being worthy of consideration in the short time we have before the new administration takes office. We will be looking forward to acting on the choice of whoever takes office next January.”

Personally, I can see a political lever here, but I’m not sure which way it turns. If Rubio/Trump/Whoever takes a commanding lead and Cruz drops out, could one of the other candidates pick up his voters by suggesting they would nominate Cruz to the SC?

Orrin Hatch will lead the “we will cave to Obama” movement. What a dissapointment.

There goes the second amendment.

    genes in reply to Andy. | February 14, 2016 at 10:56 am

    Also the First, Third, Fourth and Fifth. You WILL have a Government SJW living in your home(at your expense) reporting everything you say that doesn’t conform to the current Approved thinking.

    Subotai Bahadur in reply to Andy. | February 14, 2016 at 2:40 pm

    As law, yes. As the originally intended reality, no.

WHY are any of us concerned that Obama might make a recess appointment? Aren’t such appointments temporary??? I mean, the recess appointments clause of the U.S. constitution reads as follows (emphasis supplied):

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions WHICH SHALL EXPIRE AT THE END OF THE THEIR NEXT SESSION.

Doesn’t this mean that anyone Obama appointed to replace Scalia during a Senate “recess” would have to step down at the end of this year?

Am I missing something?

    mumzieistired in reply to JPL17. | February 13, 2016 at 11:50 pm

    They are temporary, and they “shall expire at the end of their next session”.

    But it’s nearly a year until the end of the current session (January 2017), and a lot can happen in that time.

Obama’s fundamental change will be complete when this happens!

Sammy Finkelman | February 14, 2016 at 12:24 am

They can vote down a recess appointment, I think, and the nominee is off the bench.

The time when a recess appointment might be made is either duringh summer, or after Congress’ final adjournment this year, unless they stay at least in pro forma session till their terms expire, noon January 3, 2017. The Supreme Court term runs from early October to the end of June.

Obama could try this January 3, if Congress does not assemble right away – and they’ve made custimary to wait – on the otehr hand they have to count the Electoral votes. Any appointment made after Congress finally adjourned would last until Congress adjourned for the year 2017 – unless Congress wanted to offically adjourn, but this wold allow oher recess appointments. A president could keep on appointing different people for ayear or sme months – but the period wouldn’t mesh with the Supreme Court year.

A recess appointment won’t happen.

Even if a democrat wins, they might not reappoint the guy. They will probably want their own guy. So it is a temporary position.

It’s like a football team with a head coach with one year on his contract, firing his offensive coordinator. ( Probably to save his job. ) What other person would be willing to come in and do the job, unless they are already acting as a lessor coach for the team? They have to uproot themselves for a year, then go back.

The first thing to consider is that any recess appointment is only for about half a year. Unless the next president reappoints them they are never going to be in running for a seat again. Trading the possibility for a permanent appointment for a one year and you’re done appointment. I don’t see many people taking that.

The second thing is that the person is going to have to give things up. A judge is probably going to have to give up his judgeship, and academic is probably going to have to give up his academic position.

Now head coaches do fill those positions, so maybe Obama will find someone. But I think it is going to be very hard.

On top of that I can’t see a recess appointment going well with the present nonObama SCOTUS members. I don’t think that Obama wants their animosity.

Also I think a good argument could be made that if this recess appointment guy is not confirmed, then all the decisions where he is the deciding vote can be overturned.

We haven’t confirmed a nomination in a President’s final year of a second term since . . . Frank Murphy in 1940. Not gonna happen. It is not conceivable Obama could nominate anyone who would pass confirmation by the Senate.

Of course, the losers who predict McConnell will cave won’t apologize for their filthy lies about him. They never do, being low class bastards.

Recess appointments are easily prevented — just don’t go into recess. There isn’t even the micro-second intersession recess that can’t be avoided, and that presidents have taken advantage of in the past.

Nor are any fancy parliamentary tactics needed. The majority controls the senate’s agenda, and the majority votes as it sees fit. 0bama will nominate someone. Hearings will be held. In due course, which means a few months, it will come up for a vote. The majority doesn’t have to rush this; it decides its calendar, and can reasonably treat a DOA nomination as a low priority. But eventually it will and should come up for a vote, at which the majority of senators indicate that they do not consent to the nomination. So he nominates a second person, and the same process repeats. I doubt he’d have time for a third one before his term ends.

One note: should anyone hear Democrats use the term “filibuster”, remind them that by definition it’s impossible for the majority to filibuster. A filibuster is literally an act of piracy: the minority holding up the majority’s business. When the majority decides its order of business that isn’t a filibuster, it’s the exact opposite.

The Obama move will be to nominate an African American and then play the race card to gin up black support in the upcoming election.

The only question is whether McConnell caves. That will depend on polling data and the Republican Presidential candidates.

You misunderstand how recess appointments work. There is a recent Supreme Court decision that clarifies this issue or anyone who’s not a “constitutional scholar” can just read the Constitution . The Constitution states that the Senate requires the approval of the House in order to go into recess. It can’t go into recess without it so that means it’s not possible for Obama to make recess appointments at least if we are following the Constitution.

The coming fight? The GOP couldn’t stand up to Obama when he ordered the pull-off lanes near Mount Rushmore closed. How does anyone seriously think the GOP will do little more than spew some empty rhetoric before rubber-stamping his nominee? They accepted Kagan and the wise Latina. They’ll take whatever he advances.

I’m taking my guns on a boating trip today…hope nothing untoward happens out in the middle of the river. Winds are a bit up.

I think a recess appointment in February would actually help the Republicans. A lame duck Senate can vote down the nominee after the election. This scenario allows the Republicans to use the Court as a campaign issue while denying the media the opportunity to ridicule Republicans for obstructing Obama. A recess appointment now let’s Republicans kill the appointment in a way that does not hurt them in the election.

Of course this whole discussion is moot if Republicans can’t win the presidency AND hold the senate. For example, Republicans win the presidency but lose the senate. Assuming that the Court position is still vacant, Obama will go BAMN and appoint a Justice after Congress adjourns (1-3-17) but before the inauguration (1-20-17). If a Democrat president wins and Republicans hold the Senate, the president will pick a leftists and Republicans won’t be able to delay for 4 years. If Democrats win both the Senate and Presidency, they will have to pull a “reverse-Ginsburg” to not get a leftist.

In the situation that Republicans win the presidency and hold the Senate, they will need 10 to 15 Democrat Senators to reach the 2/3 requirement for a Supreme Court nomination. However, if reason prevails in the national discourse, Democrats will not be able to vote down nominees until the 2018 midterms.

McCain and his Mini-Me Miss Lindsey are out scouting for new Gang members.

buckeyeminuteman | February 15, 2016 at 9:58 am

If Cruz doesn’t make it to the Presidency, he’d be a great Supreme Court Justice.

    He would barely be 46 by next January. Not trying to slight his potential impact as President for his term(s), but considering the impact he could have on the nation for the rest of his life, I’d like to see him on the SC. There is no doubt where his Constitutional philosophy lies, he would maintain that for the rest of his life, and there would be no surprises like John Roberts has delivered. As such, a great replacement for Scalia.