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Re: OT: Supreme Court vacancy - rudruff - 02-15-2016

Here is your problem if you are the Senate. If you don't at least vote on a nominee you have the following problems.

- You appear to not be doing your job.

- You turn the 2016 election into a massively important event where the winner gets to pick the President, maybe the Senate and the direction of the court for the next decade. Depending on what your feeling is on massive voter turnout, this might not be what you want.

- The lower court opinions seen as partisan become much more powerful because the Supreme Court won't be able to overturn them. The 9th Circuit, for instance, will be a popular place for a number of cases while this is going on.

- I think if a moderate nominee is made the vote happens.



Re: OT: Supreme Court vacancy - DC - 02-15-2016

(02-14-2016, 05:03 PM)TreesAndBirds link Wrote:[quote author=burger link=topic=14611.msg156500#msg156500 date=1455491902]
Anthony Kennedy, confirmed 97-0 in February 1988.

I  note that Kennedy was only confirmed after Robert Bork was denied confirmation  in a very acrimonious hearing.

And then-Senator  Obama voted against President Bush's two nominees, so it appears he believes that a president's nominees are not entitled to much deference.  Ironically one of the nominees Senator Obama voted against was CJ Roberts,  who ended up voting for and saving ObamaCare.

That said, I agree that the Senate should promptly move forward on the SC nomination, but both parties play these games.

For pure entertainment value I'd like to see Pres. Obama offer the nomination to Secretary Clinton. 😉
[/quote]

Or vice versa.  hillary has already said she would consider obama for the supreme court. The next president will get to nominate multiple justices. This scenario might not be seen by many as entertainment though.

Re: OT: Supreme Court vacancy - Mick - 02-15-2016

(02-14-2016, 05:21 PM)burger link Wrote:This is really simple: the "both sides do it" thing does not apply here.  Bork got a vote and lost, and his replacement got a vote and was easily nominated.  Obama's votes against Bush's nominees were meaningless theater, as the outcomes were never in doubt.

If Obama's nominees get a fair and prompt vote and can't get 50 votes, I won't complain.  But that option, in an unprecedented step, has already been taken off the table by McConnell.

Don't tell me it's just politics. This is something new under the sun.

I'd forgotten that there was a Justice Bork, I was only familiar with the term as a verb.


English[edit]

Pronunciation[edit]
(US) IPA(key): /bɔɹk/

Etymology 1[edit]

From the 1987 United States Supreme Court nomination of Robert Bork.[1]

Verb[edit]

bork ‎(third-person singular simple present borks, present participle borking, simple past and past participle borked)
1.(US, politics, often pejorative) To defeat a judicial nomination through a concerted attack on the nominee's character, background and philosophy.  [quotations ▼]





Re: OT: Supreme Court vacancy - slide - 02-15-2016

(02-15-2016, 09:46 AM)Mick link Wrote:[quote author=burger link=topic=14611.msg156505#msg156505 date=1455495675]
This is really simple: the "both sides do it" thing does not apply here.  Bork got a vote and lost, and his replacement got a vote and was easily nominated.  Obama's votes against Bush's nominees were meaningless theater, as the outcomes were never in doubt.

If Obama's nominees get a fair and prompt vote and can't get 50 votes, I won't complain.  But that option, in an unprecedented step, has already been taken off the table by McConnell.

Don't tell me it's just politics. This is something new under the sun.

I'd forgotten that there was a Justice Bork, I was only familiar with the term as a verb.


English[edit]

Pronunciation[edit]
(US) IPA(key): /bɔɹk/

Etymology 1[edit]

From the 1987 United States Supreme Court nomination of Robert Bork.[1]

Verb[edit]

bork ‎(third-person singular simple present borks, present participle borking, simple past and past participle borked)
1.(US, politics, often pejorative) To defeat a judicial nomination through a concerted attack on the nominee's character, background and philosophy.  [quotations ▼]
[/quote]

hoist with your own petard is an apt phrase with Bork.  he was often his own worst enemy in trying to seek Senate confirmation.

Re: OT: Supreme Court vacancy - burger - 02-15-2016

There are several reasons why it might be to the Republicans' advantage to confirm a moderate Obama nominee:

- Obama can make a recess appointment, and this could be a very liberal justice.  One name being floated for a recess appointment is Stanford Law professor Pamela Karlan.  If Obama puts a very liberal justice on the bench, R's have a motivation to permanently appoint someone more moderate.  And (someone correct me here if I'm wrong), but I think that if Obama repeated the recess appointment between the 2 congressional sessions, that appointment would last until the end of 2018 or the appointment of a permanent successor.

- As someone mentioned above, rejecting all nominees makes the Republicans look incapable of governing.

- If the Democrats take the senate but lose the White House, then they can easily eliminate the filibuster and approve a very liberal Obama appointee between the seating of the new Congress in early January and the inauguration later in the month.

The only scenario in which the Republicans have an advantage in rejecting all Obama nominees is winning the presidency and holding the senate.  It's too early to put good odds on either of those outcomes yet, so how this plays out depends on how much risk the R's want to take with the upcoming election.

Re: OT: Supreme Court vacancy - ColoradoTree - 02-15-2016

Quoting the Appointments Clause in Article II doesn't decide the question of whether it is appropriate for the Senate leadership to announce that no nomination will proceed.  Certainly, it is undeniably the President's power to nominate a Justice, it is equally undeniable that the Senate must give its consent to that nominee before the seat is filled.  The concern many liberals have with Sen. McConnell's announcement that no nominee will be considered is that the historical order of things--hearings, an examination of the nominee's record, conversations between most Senators and the nominee, and ultimately a vote--is being set aside.  You can point to Bork if you wish, but Bork was given hearings and a vote, and his nomination was rejected.  If a president nominates a potential Justice that the Senate finds too extreme, the Senate acts as a check on the nomination power to ensure the President fills the office with someone the Senate deems more acceptable.  The decision here--to say, before any nomination is made, that it will not be considered--is an abdication of the power to "advise and consent," not an exercise of it.  Roberts and Alito are also distinguishable, as they were given hearings and votes (both successful, obviously). 

Saying, as Sens. McConnell, Grassley, and others have, that it is the "norm" for Presidents to not be able to get nominees confirmed during a Presidential election year is incorrect.  Justice Kennedy was confirmed in an election year, as others have noted, by a 97-0 vote.  The truth is that it's just not all that common for Justices to die during a Presidential election year, so we don't have a lot of data points to look at here.  The ones that we do have--Kennedy, Benjamin Cardozo (confirmed in February 1932, a Presidential election year), Louis Brandeis (confirmed in June of 1916, a Presidential election year), John Clarke (confirmed in July of 1916), and Mahlon Pitney (confirmed in March of 1912, a Presidential election year)--support the argument that nominees in Presidential election years have been given votes and generally been confirmed.  (One exception is LBJ's ill-fated attempt to make Abe Fortas Chief and replace him as Associate Justice with Homer Thornberry, which ran into significant opposition by a Senate of the President's own party due to perceived ethical issues surrounding Fortas.) 

Nor does the argument, put forth by Sen. Cruz (and seemingly all other Senate Republicans to have announced a position on the matter except for Susan Collins of Maine), that the American people should have a say in the appointment of the new Justice make sense.  The American People had their say, by electing Barack Obama to a four-year term that ends in January 2017, and during which he has all the powers of the Presidency.  They also had their say by electing a Republican Senate that retains the powers of the Senate.  There should be a nomination, and there should be a vote on that nomination.  If both sides cooperated, there could be a final vote before summer. 

Of course, that won't happen.  And to me, once we've analyzed whether the Senate has the power to refuse to consider any nominee--and the answer is, sure they do, though it's ahistorical--the next question is whether it's wise for them to do so.  Assuming the President nominates someone qualified--Srinivasan and 9th Circuit Judge Paul Watford seeming like the most likely candidates, with the relatively recently confirmed Atty. Gen. Loretta Lynch also getting lots of mentions--the story is then completely about Republican obstruction of the nominee, rather than the nominee's qualifications or ideology.  That seems like a necessary place to be from a Republican primary standpoint, since the base would be up in arms by Republicans acceding to any Democratic replacement, no matter how moderate, for a conservative lion like Scalia.  But it also seems like a terrible place to be for the general election, both in the Presidential race and the number of Senate seats currently held by Republicans that are up this year in swing states. 

If Republicans intended to block any nominee all along, wouldn't the smarter play have been to hold hearings, stretch things out, and ultimately reject the nominee as too ideological, maybe in the late summer when it would be unquestionably too late to submit another nominee before the election?  That way, you can plausibly spin the story as about the extreme nature of the nominee.  But the way it stands right now, any attacks on the nominee will seem more like post-hoc rationalizations than true objections to a particular nominee.  I could be wrong, but this seems like a strategy that, while serving the base, will ultimately be counterproductive and help result in a Democratic Senate next year.  (Given the map and the fact that it's a Presidential year, that may have always been true, but this doesn't seem to help matters.) 

I have a feeling Republicans may ultimately regret not working with the White House to find a confirmable nominee.  I would think any nominee by a President Hillary Clinton armed with a Democratic Senate would be to the left of what Republicans could get if they played ball now. 

And rudruff, I generally agree with you, but I think the die is cast.  It's probably politically impossible at this point for McConnell to walk back his opposition to any nominee and allow a vote on a particular nominee (not to mention the Republicans in swing states who have followed McConnell's lead, like Kelly Ayotte (NH) and Ron Johnson (WI)).  And even if McConnell were inclined to allow a vote on a nominee, others in his caucus (like Sen. Cruz) would almost certainly filibuster at that point, so a Republican Majority Leader would find himself in the position of cutting off his own party's filibuster to proceed to a vote on a Democratic nominee that would change the balance of power on the Supreme Court.  For McConnell to take that step, he'd better be prepared to enjoy a forced retirement at the hands of Kentucky Republicans. 

Re: OT: Supreme Court vacancy - ColoradoTree - 02-15-2016

Oh, and there's no need for a filibuster if McConnell just refuses to refer the nomination to the Judiciary Committee or if Chuck Grassley refuses to hold hearings or if McConnell just never sets the nomination for a floor vote. 

Re: OT: Supreme Court vacancy - ColoradoTree - 02-15-2016

(02-14-2016, 10:02 PM)ferrari link Wrote:[quote author=burger link=topic=14611.msg156505#msg156505 date=1455495675]
This is really simple: the "both sides do it" thing does not apply here.  Bork got a vote and lost, and his replacement got a vote and was easily nominated.  Obama's votes against Bush's nominees were meaningless theater, as the outcomes were never in doubt.

If Obama's nominees get a fair and prompt vote and can't get 50 votes, I won't complain.  But that option, in an unprecedented step, has already been taken off the table by McConnell.

Don't tell me it's just politics. This is something new under the sun.

Why do Obama's votes get a pass as "meaningless theater?"
[/quote]

I think there's a distinction between a Senator exercising his/her independent judgment to choose to vote no on a nomination and the majority party deciding en masse to block a vote from every taking place, or a Senator staging a filibuster to ensure no vote takes place.  He doesn't get a pass on his votes, but context, as always, matters.  The Roberts nomination was assured of success, especially given a Republican majority, and with Democrats splitting evenly on that vote, there was relative freedom to make a "this guy isn't liberal enough for my taste" statement.  Alito was similarly guaranteed success, and though then-Senator Obama voted against the cloture vote (which passed anyway and was never in danger of failing), there was no real filibuster of Alito's nomination (in the sense of actually holding up the Senate's business by holding the floor), and his votes against Alito on cloture and final confirmation were thus more akin to protest votes--again, "this guy isn't liberal enough for my taste and I want people to know it."  Ultimately, Alito's nomination was approved in just three months, so Democratic opposition to Alito didn't really impact his timeline. 

In other words, you can describe those votes as theater because they weren't consequential due to the nominations never being in doubt.  Had either nomination been in serious question, with Democrats having a substantial majority in the Senate at the time, it would be interesting to see whether that would cause a change in voting pattern.  Because a failed Supreme Court nomination is so rare, I think many of the Senators voting no on Roberts or Alito would have reluctantly voted to confirm them if Democrats had held the majority, particularly with Roberts.  An academic question at this point, sure, but it would be an interesting question to ask President Obama (once he's out of office and in a more reflective frame of mind) whether he regrets voting against Chief Justice Roberts and/or Justice Alito. 

Re: OT: Supreme Court vacancy - TrumpCard - 02-15-2016

Lost in all this political talk is the grave risk that Obama will nominate a weenie to the Supreme Court.  Paul Watford, who is on Scotusblog's list of top 3 potential nominees (along with Srinivasan), is an alumnus of kal.  ???



Re: OT: Supreme Court vacancy - ColoradoTree - 02-15-2016

(02-14-2016, 05:21 PM)burger link Wrote:If Obama's nominees get a fair and prompt vote and can't get 50 votes, I won't complain.  But that option, in an unprecedented step, has already been taken off the table by McConnell.

Yeah, that'll depend on who the nominee is.  If Srinivasan (previously confirmed to the DC Circuit 97-0, and lacking an ideological background) can't get 50 votes, then it's clear the system has broken down to the point that no Democratic nominee could get past a Republican Senate this year. 

The Ginsburg and Breyer nominations seem like reasonable reference points here.  In both cases, Sen. Orrin Hatch (R-UT), then the ranking member on Judiciary, suggested to President Clinton that Senate Republicans wouldn't object to Ginsburg/Breyer to the same extent they would object to nominees perceived as ideological or who were active politicians (like Mario Cuomo, who Clinton apparently wanted to appoint).  President Clinton, still likely smarting from the beating his Administration had taken over the failed AG nominations of Zoe Baird and Kimba Wood, wanted a smooth confirmation and was inclined to pick a nominee that didn't push the envelope as much as he might have otherwise wanted. 

In a more cooperative world, envoys from Republicans on Judiciary, including the chair, Sen. Chuck Grassley (R-IA), would be talking over some names with White House senior staff right now, and a consensus list of confirmable nominees would start to emerge.  In that world, the list might have name on it like Judge Merrick Garland of the DC Circuit (seen as a relatively moderate judge, and at 63, someone a bit older than the "sweet spot" of a new Justice's age in the late 40's or early 50's), Judge Diane Wood of the Seventh Circuit (a pretty mainstream liberal judge who, at 65, would be one of the older nominees in recent years, a point in her favor from the Republican perspective) or Judge Jane Kelly of the Eighth Circuit (a longtime Iowa resident previously championed by Grassley for the Eighth Circuit and confirmed 96-0, gives liberals comfort because she was a longtime federal public defender, and gives conservatives comfort because Grassley loves her she previously clerked for a Reagan appointee on the Eighth Circuit, and has the benefit of being a HLS classmate of President Obama).  And yes, Srinivasan would almost certainly be on that list, too.  Maybe a former prosecutor like Sen. Amy Klobuchar (D-MN), too.  The Judiciary staffers would also be shooting down some names of possible nominees as either unlikely to be confirmed or likely to undergo a brutal confirmation battle no matter the ultimate outcome. And in the end, we'd get a Democratic nominee that isn't as liberal as the President would ideally like, but still obviously far to the left of Scalia. 

But that's not gonna happen, folks.  The only "consensus" candidate I've seen floated by a Republican was Sen. Orrin Hatch, suggested by Lindsey Graham.  And unless you think President Obama would seriously entertain the idea of nominating a conservative Republican to the Supreme Court, that means no conceivable Democratic nominee is getting confirmed, at least until after the election.  If the nominee ends up being Srinivasan or someone similarly considered a moderate, and if Hillary Clinton wins, I wouldn't be surprised to see Senate Republicans fast-track the nomination through the lame-duck session in order to keep from facing a more liberal Clinton nominee when she's sworn in. 


Re: OT: Supreme Court vacancy - ColoradoTree - 02-15-2016

Perhaps this is mostly interesting to lawyers like me, but the strategic decisions Chief Justice Roberts has to make now are fascinating.  Where a case was previously argued, decided 5-4 in conference, but now lacks a majority due to Justice Scalia's death, does he allow the case to be decided on a tie (in 4-4 splits, the lower court opinion is affirmed, but without any precedential impact outside that circuit) or hold it over for reargument when Scalia's successor is confirmed, potentially risking that the new lineup will decide the case the other way?  I suppose it depends on the Chief's prediction for who wins the Presidential election, as well as on the issue being decided.  If you're in the Chief's shoes and you anticipate the new Justice moving the Court to the left, you might want to just take the loss on a bad (in your view) Ninth Circuit opinion in order to avoid a decision on that issue becoming the law of the land, and preserving the chance that by the next time the issue came up, the Court would once again be more conservative.  Anyway, an interesting set of choices.

Re: OT: Supreme Court vacancy - ThePassionOfTheChryst - 02-15-2016

How would the possibility of the Democrats reclaiming control of the Senate this year throw a monkey wrench into things, if at all?  It would seem to me that the GOP's hold on the Senate is tenuous at best, and hopefully they realize that.

Re: OT: Supreme Court vacancy - TreesAndBirds - 02-15-2016

ColoradoTree, I think your analysis is well done.

That said, my recollection is that the Democrats regularly used the fillibuster to thwart Pres. Bush's judicial nominees (although it didnt affect a Supreme Ct nominee) so the precedent of not allowing a vote on a President's nominee seems, unfortunately, to have been established.

But the bottom line is politics is becoming increasingly polarized, and this action by the Republicans, which I hope they are just using for leverage but wouldnt bet on it, is just one more step in that direction. And for those who think this polarization is overwhelmingly caused by Republicans, well, let's just say we disagree.

Re: OT: Supreme Court vacancy - French Rage - 02-15-2016

(02-15-2016, 01:06 PM)ThePOC link Wrote:How would the possibility of the Democrats reclaiming control of the Senate this year throw a monkey wrench into things, if at all?  It would seem to me that the GOP's hold on the Senate is tenuous at best, and hopefully they realize that.

And furthermore, would obstructing the nominations impact any of those races?  As you mentioned, the GOP has to defend 24 of the 34 seats contested this election.  And these are seats from the 2010 election cycle, which means there are probably a good number of them in blue/purple states.  That's already a bit of a tough order, and if they are seen as obstructing the operation of the government does that give their opponents another issue to run on?

Re: OT: Supreme Court vacancy - stupac2 - 02-15-2016

(02-15-2016, 01:06 PM)ThePOC link Wrote:How would the possibility of the Democrats reclaiming control of the Senate this year throw a monkey wrench into things, if at all?  It would seem to me that the GOP's hold on the Senate is tenuous at best, and hopefully they realize that.

There's so much game theory here it's actually pretty interesting to think about. It's basically a prisoner's dilemma, where R's either take the safe-but-nonideal outcome (Obama picks someone moderate like Sri who is then confirmed), or gamble for the ideal outcome (R's win presidency and keep senate, replace Scalia with reliable conservative) with a very real chance of a horrible outcome (D's win presidency and senate, replace Scalia with reliable liberal). It's not obvious at all to me that you want to gamble here, especially given the somewhat high likelihood of the GOP nominating Trump and everything going to hell in a handbasket.

And that's ignoring the fact that playing games with the nomination might actually make the least-desirable outcome more likely, but those second-order effects are really hard to game out (this has never happened before and it's hard to know which side is going to be more motivated by needing to replace a justice).

Re: OT: Supreme Court vacancy - Farm93 - 02-15-2016

Big turnout is a big problem for the RNC.  Big turnout in Montana or California would change nothing, but big turnout in Ohio, North Carolina or Florida would almost certainly move purple states to very solid blue states.

Odds seem strong that Obama will nominate someone close to moderate.  The Republicans in the Senate seem set to stall anyway.  Problem for the RNC is that an actual reason to vote that inspires many is not going to be good for the RNC.  The Democratic nominee could pre-select some very exciting pick (ie, Sen. Warren, an Asian-American, a minority female).  That prospect could fuel high Democratic party turnout.  The Republican nominee would already/should already benefit from high GOP turnout, so this issue, and any theoretical picks by either party, should not offer many incremental RNC voters.

Some irony in the idea that the Republicans stalling could be a gift to the DNC.  Wonder if the Republican Senate might approve an Obama nominee if the polling in August or September suggests that the unfilled vacancy is serving as a catalyst for DNC voter turnout.

It is a pretty fun game theory case.  Likely to be analyzed for decades.

Re: OT: Supreme Court vacancy - dabigv13 - 02-15-2016

A 538 article on this would be interesting, but I suspect there isn't enough historical data to give statistics much of a say here. Still imagine there is an angle they could work somehow though.

Re: OT: Supreme Court vacancy - FireSting81 - 02-15-2016

PS-

Former University of Iowa Guest Law Professor Jane Kelly is one of those in the consensus top 4 to replace Scalia. Lived in Cedar Rapids for twenty years, first as a public defender and then as the district court judge. She was a classmate of Obama's and well-liked by Judicial Committee Chairman Chuck Grassley, who used his pull to unanimously confirm her as Obama's nominee to the Federal Court in 2013. So it looks like it could be Iowa vs. Stanford again.  ;D

Re: OT: Supreme Court vacancy - ThePassionOfTheChryst - 02-15-2016

(02-15-2016, 02:10 PM)Farm93 link Wrote:Big turnout is a big problem for the RNC.  Big turnout in Montana or California would change nothing, but big turnout in Ohio, North Carolina or Florida would almost certainly move purple states to very solid blue states.

Odds seem strong that Obama will nominate someone close to moderate.  The Republicans in the Senate seem set to stall anyway.  Problem for the RNC is that an actual reason to vote that inspires many is not going to be good for the RNC.  The Democratic nominee could pre-select some very exciting pick (ie, Sen. Warren, an Asian-American, a minority female).  That prospect could fuel high Democratic party turnout.  The Republican nominee would already/should already benefit from high GOP turnout, so this issue, and any theoretical picks by either party, should not offer many incremental RNC voters.

Some irony in the idea that the Republicans stalling could be a gift to the DNC.  Wonder if the Republican Senate might approve an Obama nominee if the polling in August or September suggests that the unfilled vacancy is serving as a catalyst for DNC voter turnout.

It is a pretty fun game theory case.  Likely to be analyzed for decades.

Huh?

Re: OT: Supreme Court vacancy - French Rage - 02-15-2016

(02-15-2016, 02:24 PM)FireSting81 link Wrote:PS-

Former University of Iowa Guest Law Professor Jane Kelly is one of those in the consensus top 4 to replace Scalia. Lived in Cedar Rapids for twenty years, first as a public defender and then as the district court judge. She was a classmate of Obama's and well-liked by Judicial Committee Chairman Chuck Grassley, who used his pull to unanimously confirm her as Obama's nominee to the Federal Court in 2013. So it looks like it could be Iowa vs. Stanford again.  ;D

I think her opinion on the Rose Bowl halftime show should be used as a litmus test.