February 14, 2016

Gov. Kasich thinks it's "kind of cool" for the people "to have sort of an indirect vote on who's going to be a Supreme Court justice."

On "Meet the Press" today, Chuck Todd pushed Ted Cruz about the GOP plan not even to "bother" considering an Obama nominee for the now-empty Scalia seat on the Court. Looking at the problem not from the perspective of the power struggle between the President and the Senate, Kasich stressed the role of the people:
GOV. JOHN KASICH: But, you know, I just think at a time when the country is so divided, it would just be great if the president didn't send somebody forward and we had an election. And then everybody would be clear about what they want in the next Supreme Court justice. 
Todd taunted him: But you could end up with a Democratic Senate and a Democratic President and then you'd get an even "more liberal justice than what President Obama might provide." Kasich stuck to his love of democracy:
GOV. JOHN KASICH: Well, but that's life. I mean, you know, then the people actually have had some say. It's really kind of a unique thing when you think about it, Chuck. It's unique to say that the public itself is going to have sort of an indirect vote on who's going to be a Supreme Court justice. I think that's kind of cool. 
Yeah, it is kind of cool. Scalia's seat is the 5th vote to be added to the liberal 4 or the conservative 4. It's cool to have a vote on precisely that.

But, as Kristen Soltis Anderson said on "Fox News Sunday":
Only 20 percent of Americans say that they think that the Supreme Court is too conservative right now... [Y]ou have 37 percent of Americans who think the court is already too liberal, in general I think conservatives are excited about having this battle moving into November.  
A question for liberals is: Why don't you want to ask the people what we want? I can think of a few answers. #1 is: We're afraid the people want to preserve the existing balance, not suddenly to shift to the left. And conservatives should needle them with that: You don't want to hear what the people want, because you know they don't want a more liberal Court.

But there are other reasons: #2: Why should liberals wait to get what they want through an election when they see a way to get what they want now? #3: The people don't really understand the workings of the Court and don't know what they really want, not like the experts, the liberal elite. #4: Constitutional law is not about the transitory preferences measured in elections but enduring values and principles enshrined in a venerable document intended to transcend political passions. #5: The presidential election is about many important issues that have been developed over the past months — immigration, ISIS, the economy, heath care — and it would be a terrible distortion to suddenly twist it into the question whether we want the Supreme Court to be majority conservative or majority liberal.

67 comments:

Hagar said...

4, 4, and Justice Kennedy.

BDNYC said...

I mean, the Republicans can still vote down Obama's nominee. They will just slowly move the nomination through committee and then vote him or her down.

Ann Althouse said...

"4, 4, and Justice Kennedy."

That's why many people think the Court has already been too liberal.

By the way, I can't help feeling a little longing for the 5-4 liberal Court only for the relief, at long last, from having so much depend on appealing to the unique sensibilities of Anthony Kennedy. I'm trying to imagine how refreshingly easy it will be to explain the new cases to students.

AF said...

This whole post and line of argument is based on the false premise that the people haven't already had "sort of an indirect vote" on who should be appointed to the Supreme Court. They did -- in 2012. SCOTUS appointments were part of the campaign as they always are. That election decided who would get to appoint SCOTUS justices between January 20, 2013 and January 20, 2017. Senate Republicans have the power to vote down Obama's nominees if they choose but let's dispel with this notion that this is about anything other than blocking Obama's appointments for ideological reasons.

Karen of Texas said...

Then let's also dispel with the notion that this is about anything other than an idealogical Obama appointment.

Of course it's idealogical - on both sides of the fence.

LCB said...

They did -- in 2012. SCOTUS appointments were part of the campaign as they always are.

Agreed. With the court aging, the next president could get to put forth 2 or 3 Court Justices. I'd never have thought Scalia would leave us before some of the others...but there it is.

tim maguire said...

People already have an indirect vote, As AF points out. It's a shame the one branch explicitly crafted to be non-political has become so political. Scalia's death should be a family tragedy, not a national crisis. But that is the world the liberals made. Now they must live with it.

gadfly said...

Kasich, at best, is a stupid man with a wild imagination. The American public has never had a say as to who is appointed as a Supreme Court Justice. Why does he lie in front of God and everybody?

At election time, a few people may vote based upon liberal or conservative bias, but as we know from appointments made in the past, you cannot always judge how a judge will react once he becomes a justice for life.

Susan Estrich pointed out to Bret Baer yesterday that historically voters do not push the button for President solely on SCOTUS appointment opportunities.

Rob said...

Ann Althouse wrote, "I can't help feeling a little longing for the 5-4 liberal Court only for the relief, at long last, from having so much depend on appealing to the unique sensibilities of Anthony Kennedy."

Better than having so much depend on appealing to the unique sensibilities of Sandra Day O'Connor, whose jurisprudence, if you can call it that, was well-intentioned but largely lacking in any firm consistent principles.

Amanda said...
This comment has been removed by the author.
AF said...

"Of course it's idealogical [sic] - on both sides of the fence."

Right, so Republicans should vote against Obama's nominee if they find them ideologically unacceptable. What they should not do is refuse to vote on the nomination -- that isn't ideology, that is refusal to go along with the constitutional system.

Amanda said...


Liberals got what they wanted through an election, conservatives didn't have enough votes to get their candidate in. Obama won, he is the President, constitutionally he gets to nominate a SC Justice, or even appoint, through a recess appointment. It's clear that conservatives wish to thwart the Constitution and do not consider that there were TWO elections in which the people chose what they wanted. Why is it important to delay hearings for President Obama's nominee? Because conservatives do not respect the process or the Constitution.

harrogate said...

Except when there'as a year left in the term of a Democratic President. In that case, argue that it would be "cool" to insist that no nominations happen, and even 'cooler' to refuse to even bother considering a nomination, should it happen.

Quite a definition of Cool you all have, there.

David Begley said...

Just got my hair cut. Young barber woman had no idea who Scalia was. But I imagine HRC could inform the LIVs and make SCOTUS the issue. She's got no other issues.

Sebastian said...

"#4: Constitutional law is not about the transitory preferences measured in elections but enduring values and principles enshrined in a venerable document intended to transcend political passions." Refuted by: "the relief, at long last, from having so much depend on appealing to the unique sensibilities of Anthony Kennedy" You don't mean to suggest that his "unique sensibilities" enabled him to discover the "enduring value" of SSM in the 14th, do you?

Roughcoat said...

I thought a recess appointment requires the "advice and consent" of the Senate. Is that correct?

MikeR said...

#6 Presidents are supposed to appoint judges.
I well understand that the Republicans are the ones who would be using all these arguments if the situation were reversed, and Democrats would be talking about waiting for the will of the people.

MikeR said...

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/13/flashback-senate-democrats-in-1960-pass-resolution-against-election-year-supreme-court-recess-appointments/
Funny that.

eric said...

Blogger Amanda said...

Liberals got what they wanted through an election, conservatives didn't have enough votes to get their candidate in. Obama won, he is the President, constitutionally he gets to nominate a SC Justice, or even appoint, through a recess appointment. It's clear that conservatives wish to thwart the Constitution and do not consider that there were TWO elections in which the people chose what they wanted. Why is it important to delay hearings for President Obama's nominee? Because conservatives do not respect the process or the Constitution.


Amanda has a point here. The people did speak in an election.

In 2014 they handed the Senate to the Republicans. This was a clear sign that the people didn't w ant the Senate to approve anymore SCOTUS nominations to the court.

Let's follow the constitution and lets have elections mean something.

Sorry Democrats, but the people spoke loud and clear in 2014.

averagejoe said...

Conservative 4? Thomas, Alito...Roberts*...Who's the 4th?

Otto said...

I think the next appointee should be a Protestant. We need a token Protestant representation to show how unbiased our system is. Wait maybe a Muslim is even better.

Oso Negro said...

The Supremes can find anything you want in the living, breathing Constitution. I think that the founders were possessed of a healthy respect for Sharia, and I have no doubt that with due process and consideration (plus one more Obama appointee) it can be coaxed from the text.

SteveR said...

#2

William said...

Obama should nominate a black man. It wouldn't hurt if he was also out of the closet. Then, when the Republicans drag their feet, he can use their delays to energize the base.

Amanda said...

Eric, the people speak loudest in Presidential elections. Also don't be so sure that the Democrats won't win back the Senate majority in 2016. In fact I predict they will as well as winning the Presidential election. With the Clown Car that Republicans have put forth, it won't be difficult. Last nights Republican debate pretty much proved it. What a circus.

Michael K said...

" thought a recess appointment requires the "advice and consent" of the Senate."

No, a recess appointment is only until the end of the Congress term, or until January 17, 2017. Eisenhower did a recess appointment of Brennan in 1956 during the election campaign. Supposedly he did so to reassure "moderates" that he was not a "conservative." He was re-elected and Brennan served a full term.

The Senate recessed last Friday and Obama, if he moved fast, could do a recess appointment before the 22nd. Would anyone serious accept such an appointment ? We may get to see.

bbkingfish said...

Wonder to what poll Ms. Anderson is referring. Any idea when the poll was taken?

I also would be interested to know the percentage of general election voters to whom Supreme Court appointments is a top issue. I'd bet it's a pretty small number.

I'd also be willing to bet that most of that small number already know the party for which they're voting.

The President should name some semi-reasonable candidate for the Court as soon as he can. If the Rs refuse to consider her, then he should send them someone else. Wash, rinse, and repeat every two weeks from now until November. Then, let the chips fall where they may.

eric said...

Blogger Amanda said...
Eric, the people speak loudest in Presidential elections. Also don't be so sure that the Democrats won't win back the Senate majority in 2016. In fact I predict they will as well as winning the Presidential election. With the Clown Car that Republicans have put forth, it won't be difficult. Last nights Republican debate pretty much proved it. What a circus.


I agree, the people do speak loudest in a Presidential election. And they speak latest in the most recent election. It's weird, you keep talking about the constitution but forget we have three branches.

And in the latest election the people gave one whole branch to the Republicans. Resoundingly.

Maybe that's not loud enough for you.

Do you want loud? Are you sure the Democrats will win? Great! Then you shouldn't mind waiting for 2017 to see who the next permanent member of the SCOOTUS will be.

Something tells me you're not that confident though.

gbarto said...

The President can nominate whomever he wants. And the Senate can vote down whomever they want. The framers created both these options and I see no controversy in using either of them.

The President may be able to make a recess appointment. Even though Supreme Court appointments are for a lifetime, though, that recess appointment would only last until the next session of the Senate, in January 2017.

If Obama were smart, he would realize he is not going to get his liberal justice so he may as well go for the next best thing: a Republican squish that will probably "grow in the position" but that the Republicans won't know how to reject. That shifts the court from 4-4-Kennedy to 4-3-2 Kennedys. I hate to give anyone ideas, but if Obama wanted to slam a wedge between the Republican establishment and the religious right while appearing to graciously reach out, he could move the court left and muck up the GOP for years by nominating Bush's former Solicitor General, Ted Olson.

Michael K said...

"Something tells me you're not that confident though."

"Amanda" is not worth debating. Troll through and through.

"he could move the court left and muck up the GOP for years by nominating Bush's former Solicitor General, Ted Olson."

Don't give him ideas ! Obama is not subtle enough to do that, thank God.

Amanda said...

No Eric, I do mind waiting. My President has the right to nominate or appoint in a recess appointment. My President won two elections. My President should not be denied his Constitutional right to have a hearing on his SC nominee. My vote counted, so did the majority of Americans voting in the Presidential elections. There are three CO EQUAL branches of government, let's not overlook that. The Senate does not have the authority to nominate, nor should they thwart the Constitution by a delay that we all know is purely political. Shame on those elected to the a Senate who refuse to do their jobs. Have a hearing, then vote yes or no. Or maybe President Obama should really just use his Executive authority to make a recess appointment.

Amanda said...

Michael K,
Oh my what an old grump you are. Can't tolerate a dissenting opinion, huh? Not in charge of the blog's comments sections, now are you?

JaimeRoberto said...

Amanda, the president certainly has a right to make a nomination. The Senate has a right to reject that nomination.

Drago said...

Amanda: "There are three CO EQUAL branches of government, let's not overlook that. The Senate does not have the authority to nominate, nor should they thwart the Constitution by a delay that we all know is purely political."

Oh my, how will Amanda and the other voice-actuated automatons on the left explain Obama's refusal as a Senator to vote for cloture on a judicial nomination made by the President at that time?

In fact, Senator Obama wanted to filibuster the Alito nomination and voted that way.

Gee, it's almost as if the left doesn't actually believe a single thing they lecture the rest of us about.

Obama's nominee should receive just as much consideration as Miguel Estrada did from the democrats.

Fabi said...

I wonder if Amanda even reads her own bluster? Of course Obama can nominate someone. He can even make a recess appointment. So what? The Senate can also delay the process, thwart, obfuscate or even block a nominee as they see fit. They owe no explanation. Co-equal. Can you dig it?

Amanda said...

Not Fab,
Oh yes, they most certainly do owe the American people an explanation. So when/if President Obama makes a recess appointment, I guess he doesn't owe anyone an explanation either. You see how that works, can you dig it?

Fabi said...

Of course Obama wouldn't owe an explanation for a recess appointment. Keep your strawmen to yourself, sweetie.

Amanda said...

Not Fab, how do you know I'm a "sweetie"? I could be a 300 lb hairy male named Chuck, using the pseudonym Amanda. Oh my the assumptions we make when we attempt to diminish. Fabi sounds sort of effeminate, BTW.

gregq said...

A question for liberals is: Why don't you want to ask the people what we want?

Because that would require respect for the people, and respect for democracy, and the Democrats have neither.

That's why they use the Courts to push their political agenda, because they know they'll lose if it comes up for a vote.

gregq said...

I'm trying to imagine how refreshingly easy it will be to explain the new cases to students.

"The Left wing 'Justices' vote for whatever helps the Left, and utterly ignore teh Constitution and the law."

Easy to explain, and true. But I'd think that would be a bit depressing for a law professor.

We need Cruz to win, and RBG and Breyer to resign, and then we'll be able to properly ignore Kennedy.

Fabi said...

I apologize for getting under your thin skin, Amanda.

Robert Cook said...

Heh. I can imagine the rightful hectoring and ridicule if we had a Republican president who had a year left in his second term and the Democrats suggested he wait until the next president arrived in office for a nomination to the court be made.

gregq said...

Wow, where were all these Principled Constitutional Leftists while the minority Senate Democrats were filibustering Bush judicial nominees, right after he won reelection, and the Republicans increased their control of the Senate? I know, I know, they were all cheering on Senator Obama as he voted to filibuster every single Bush judicial nominee!

Welcome to the world you created. I hope it brings you much misery and unhappiness. Because that's what every single one of you leftists deserve.

Drago said...

You dont have to imagine it cookie. Just review Harry Reid and the dems judicial oversight behavior during W's last 2 years.

Fabi said...

But, but, bu, gregq, they were all radicalz!!1!11!

/prog

PWS said...

It is untenable when either side filibusters the nominees. The hypocrisy on Scalia's replacement battle is so naked: if a Republican was in office, there would not be any Repubs saying wait. As to the argument about The People having a say, they have. They elected Obama twice, for four years; he's only served three of his second term.

Will Obama confer with Hillary?

The Cracker Emcee said...

Amanda,

The American people who elected them to the Senate to block Obama? Those American people? No explanation necessary. Just do what I hired you to do.

Amanda said...

"The sudden death of Justice Scalia creates an immediate vacancy on the most important court in the United States.

Senator McConnell is right that the American people should have a voice in the selection of the next Supreme Court justice. In fact, they did — when President Obama won the 2012 election by five million votes.

Article II Section 2 of the Constitution says the President of the United States nominates justices to the Supreme Court, with the advice and consent of the Senate. I can’t find a clause that says “…except when there’s a year left in the term of a Democratic President.”

Senate Republicans took an oath just like Senate Democrats did. Abandoning the duties they swore to uphold would threaten both the Constitution and our democracy itself. It would also prove that all the Republican talk about loving the Constitution is just that — empty talk."

~Elizabeth Warren~

Original Mike said...

"#4: Constitutional law is not about the transitory preferences measured in elections but enduring values and principles enshrined in a venerable document intended to transcend political passions."

If you're Scalia, yes. If you're Ginsburg, not so much.

Fabi said...

Elizabeth Warren fails to delineate how blocking a nominee would be unconstitutional. What a hack.

eric said...

It sounds like Fauxcahontas has her panties in a bunch.

I hope they continue to ride up her backside for the next 11 months.

I mean, what does she care? Hillary is going to win the election and the Democrats are going to take over the Senate anyway, right? Right...?

Me thinks they doth protest too much.

eric said...

Blogger Amanda said...
No Eric, I do mind waiting. My President has the right to nominate or appoint in a recess appointment. My President won two elections. My President should not be denied his Constitutional right to have a hearing on his SC nominee.


Amanda, I find your appeal to the constitutional right of the President as very sweet. Cute even.

But I gotta level with you. The constitution is only as valuable as the paper its printed on, maybe to wipe my arse with it. Once the 9 unelected members of the high Court decided it gave all women a right to kill babies? To gay sex? To enshrining gay sex in the covenant of marriage? That obamacare was a constitutional right?

Yeah, good luck with that constitution. This Republic is dead and dying. And your fake appeal to its founding document falls on empty ears. You don't get to shit all over it whenever you decide it doesn't apply, and use it as a tool to beat the rest of us into submission when you decide it does.

Good luck with that. We are onto your game now.

Hagar said...

If one of the liberal bloc now retired or became incapacitated, it would be 3, 3, and Justice Kennedy.
That would make for a number of 4 to 3 decisions that would be binding, no?

Yugan V said...
This comment has been removed by the author.
rcocean said...

The democrats including Obama tried to filibuster Alioto's nomination. They didn't want the President to have an up or down vote.

The Republicans should do the same.

Fabi said...

Apparently Yugan V doesn't understand the concept of co-equal branches, either. This is getting tedious.

Oshbgosh said...

Why would anyone allow President Obama to place their name into nomination knowing the Republicans will block any attempt to vote them onto the court? This will likely become a hyper partisan affair with the nominee verbally pillorying the Republicans in the press. In retaliation be prepared for another "Borking" from the right this time. Then again President Obama could nominate someone acceptable to the Republicans... but of course that will not happen as it would require statesmanship.

Original Mike said...

"The democrats including Obama tried to filibuster Alioto's nomination. They didn't want the President to have an up or down vote."

Yeah. In the absence of past events, I would be inclined to accept that the Senate should be principled and hold an up or down vote. But given past liberal behavior, I find their current appeal to principle to be hollow.

eric said...

Blogger Yugan V said...
Why don't you want to ask the people what we want?
We already did and they chose Barack Obama in 2012.


We already did and they chose a Republican congress in 2014.

n.n said...

He must be thinking of our Republican Form of Government staffed by elected representatives. Only one level removed along several million trajectories.

readering said...

For Obama to defer to McConnell and Grassley and the #NoHearingsNoVotes crowd and forego sending a name to Congress would be to emasculate himself. Silly to even discuss. Funny that Republicans, with strong majority in the Senate and on Judiciary Committee, seem afraid to have hearings and votes. Cruz talks of filibustering, a disguised insult to McConnell and Grassley. Cruz is so unhinged that he warned at the debate of Trump appointing liberal justices soon after Trump anticipated the charge by volunteering two choices--both rock-ribbed conservative appellate judges.

Too bad Obama won't make a recess appointment of one of the three retired (Republican) justices, pending nomination and a vote on a permanent successor to Scalia. It would remove the "we-need-a-full-complement" argument. One is liberal, one moderate-liberal and one moderate.

https://en.wikipedia.org/wiki/Ideological_leanings_of_U.S._Supreme_Court_justices

damikesc said...

Right, so Republicans should vote against Obama's nominee if they find them ideologically unacceptable. What they should not do is refuse to vote on the nomination -- that isn't ideology, that is refusal to go along with the constitutional system.

True.

But the current President is uniquely poorly equipped to make such a complaint.

Eric, the people speak loudest in Presidential elections.

Ah. All votes are equal, but some are more equal than others. Got it.

We already did and they chose Barack Obama in 2012.

...and the GOP in 2014...


If the GOP REALLY wants him gone, they could try to convince Obama to nominate Cruz.

Rick said...

Amanda said...
My President should not be denied his Constitutional right to have a hearing on his SC nominee. My vote counted, so did the majority of Americans voting in the Presidential elections.


The left's faux outrage is always amusing. Apparently presidential votes should count but Senatorial votes should not. Expect when there's a Republican president and a Democratic Senate. Then Senate votes count and Presidential votes do not.

OGWiseman said...

#6 - There was already an election to determine who would nominate in this scenario, and Obama won it, handily. There was also an election to determine who would vote on Obama's nominee, and Republicans won it, handily. The result should be a very centrist nominee who is barely acceptable to Obama and barely acceptable to Republicans. That would be an excellent result.

Real American said...

Liberals don't want to ask the people what we want because they don't give a fat flying fuck what WE THE PEOPLE want. They will tell us what we want. If we disagree, we're fucking stupid and bigoted, remember? We cling to our guns and our religions and need our Ivy League betters to tell us what to think and what to eat and where to work and how to live. More than anything, that's exactly how they view the court - the law is too important to be left to debate. Left wing social and economic values must be IMPOSED. If they had better arguments, they'd be able to convince a majority of their fellow citizens to agree with them. They don't. State after state voted to uphold traditional marriage and the Supreme Court said "no, rubes. you must embrace our preferred political opinions!" They did the same thing with abortion. They're trying to do the same thing with guns and free speech. No more debate (does the left want a debate on any issue? No, which is why they constantly try to shut down free speech.). No differences of opinion are allowed. Elections don't have consequences. We shall do what they say.

SO stop fucking asking why the liberals don't ask what we want. They don't fucking care.

amn said...

#6. That isn't how the system works. The sitting president nominates justices, and we had a democratic election three years ago to determine who would nominate justices during 2013-2016. Why is that suddenly undemocratic because there's an election in nine months? The next president, assuming s/he serves 8 years, will very likely replace Ginsburg, Kennedy, and Breyer who will all be in their late 80s-early 90s by 2024. What is more democratic about pushing the replacement of Scalia into the next term, such that Obama nominates two justices and the next president nominates four?

veni vidi vici said...

Sadly, the past few elections have ultimately always boiled down to who one wants picking/packing the Court. Look no farther than the tattered pinata of "the abortion debate" (TM) and its intractability for a pseudo-elevated reframing of just that question. After all, the abortion legality question has long been an impossible political question, which is why it was punted to the courts 40 years ago in the first place.

Otherwise, for the most part anyone with a sense of reality ought to see for what it is, namely that the American polity is largely settled, with surprising amounts of consistency across administrations of both parties through time, such that the politics of America are for the most part a game of tinkering around the edges of consensus.