February 16, 2016

"Obama will nominate someone whose demographic characteristics help in the contests for president and U.S. Senate. That is not just his main criterion."

"It is his only one. The candidate could be from a purple state. Or a Latino. Or openly gay. Having finished law school would be a plus."

Yes. Don't waste your time thinking we are talking about a person who will actually serve on the Court. It's just another dimension within which we're talking about what we were already talking about, with greatly jazzed up attention to the effect the new President and the new Senate will have on the Supreme Court.

87 comments:

B said...

Janice Rogers Brown

traditionalguy said...

Obama's War on the Supreme Court. Those are the guys that could actually call a halt to the New EPA Tyranny in the name of delusional CO2 pollution control under the Clean Air Act.

MayBee said...

Because gay activists are not already in the Democrats' corner.

Beaumont said...

Just goes to show how the Supreme Court is just another governmental venue for the expression of political ideology cloaked in legalese.

MayBee said...

There is already a latino on the court.

And, you may have noticed, two latinos running for president.

Roy Jacobsen said...

Question for the President: If Dr. King's dream is dead, are you the one who killed it?

Mark said...

If Republicans want to telegraph an obstructionist agenda, Obama would be foolish not to take advantage of that.

Openly announcing that no one will be approved is stupid tactics. I hope McConnell enjoys being minority leader, as he seems to be trying to give the senate back to Dems.

Brando said...

Considering those points--that this whole thing is political theater and no one will be approved for the SC this year--the GOP positioned itself poorly by coming out and saying it. Had they instead said "we look forward to reviewing and approving a replacement who could do justice to Scalia's legacy" then they could have pinned the blame on Obama if he nominated someone not of Scalia's caliber (which of course would be all he would nominate). Then the campaign message is how Obama is obstinate, and trying to shift the court his own way, and is contemptuous of the Senate's role of "advise and consent", etc. GOP has to win over moderates, or at the very least not drive them to the Democrats.

Of course Obama could also nominate Pat Toomey, so the GOP would have a choice of accepting a conservative on the Court this year but likely losing the PA Senate seat.

Or Obama could propose getting Ginsburg to retire now, and working with the Senate to find two moderates to replace Scalia and Ginsburg. He could point out that they could do this now, or wait until possibly President Clinton and a Democratic Senate (a distinct possibility, and maybe a likelihood with Trump and Cruz both leading the GOP primaries) decide to roll through a swampy dreadlocked liberal to take over Scalia's seat.

Possibilities abound!

Rusty said...

I think Former Attorney General Holder would be a good nominee. I mean if Obama wants go full on "Fuck You America". Which is pretty much what he's been doing from day one anyway.

MayBee said...

It has to be someone willing to sacrifice his or her reputation and career for the good of the Democrat Party.

Brando said...

"Openly announcing that no one will be approved is stupid tactics. I hope McConnell enjoys being minority leader, as he seems to be trying to give the senate back to Dems."

Agree completely. This is McConnell's second unforced error on that score (the first was when he said out loud his primary goal was to make Obama a one-term president). I think sometimes he forgets that there are a lot of people who may sympathize with the GOP and oppose a lot of what Obama does, but do not consider the man evil and want to see a stake through his heart.

There was also no point to it--even if in your heart of hearts, you have no intention of approving his choice, even if he were to find the perfect Scalia clone, you DON'T ANNOUNCE IT. This is a gimme he just threw to the Democrats.

And if (when?) the Dems take back the Senate, and if (when?) they have a Democrat in the White House, if they want to scuttle the whole filibuster now they can say "see, the GOP just wants to obstruct, they are going far beyond anything before, now we have to trim their power to stop everything".

traditionalguy said...

Allan Grayson says Obama needs to nominate Senator Warren. That would be a great tactical move on several levels.

Ignorance is Bliss said...

Oprah. Or maybe Ellen.

rhhardin said...

If it's a clear lefty loon, hold hearings.

Greek Donkey said...

You know those old, married couples where after one dies, the other dies within a month or two? Well, I predict Ruth Bader Ginsburg will die within 90 days. Alternatively, given the age of the justices and the contentious battle that is coming re: Scalia's replacement, I think at least one other justice will die before a new justice in confirmed.

Whatever happens, we deserve all this. We've created it or allowed it to happen. We've allowed emotions to rule politics and politicians to play those emptions. We've become so full of ourselves and the import of our own beliefs before all others. We may well be living in the most sanctimonious period in human history. It will only get worse. Echo chambers. Navel gazing. Social media.

What's most disappointing is that so many don't even understand anything that they are criticizing. It is all gut reaction, no thinking. My journey. My truth. Me. Me. Me.

Twas ever thus? I think not. It is a new epoch.

MayBee said...

And if (when?) the Dems take back the Senate, and if (when?) they have a Democrat in the White House, if they want to scuttle the whole filibuster now they can say "see, the GOP just wants to obstruct, they are going far beyond anything before, now we have to trim their power to stop everything".

The Democrats have not hesitated to do whatever they want to do because the Republicans are obstructionists, with or without this happening.

There is not a single one of them who would have approved a GWB nominee in Feb 2008. We all know that. They know that, too.

machine said...

"Tino" Cuéllar...eminently qualified.

and the "originalists" must advise and consent.

MayBee said...

Lest we forget reality, here is a tweet from Allahpundit:

Allahpundit ‏@allahpundit 1h1 hour ago
Asked their opinion of Scalia, narrow plurality of Americans say they never heard of himlink

who-knew said...

Ellen or Oprah? Why not? What's one more clown on the court. Coincidentally, I just started reading "Supreme Courtship" by Christopher Buckley about a president who nominates Judge Judy to the court. It will be interesting to see if Obama decides to go that route.

Left Bank of the Charles said...

Amy Klobuchar.

Brando said...

"The Democrats have not hesitated to do whatever they want to do because the Republicans are obstructionists, with or without this happening.

There is not a single one of them who would have approved a GWB nominee in Feb 2008. We all know that. They know that, too."

I should clarify--of course the Dems would try to do that anyway, as Harry Reid demonstrated. But it'll be a lot easier for them to sell that sort of power play to moderates who might otherwise have considered that overreach.

And yes, if the shoe was on the other foot the Dems would have blocked any GWB nominee in 2008 (unless he offered them some additional concession). And McConnell is not wrong to block this time, either--it's the saying it out loud that is political malpractice. Then Obama can say "see, even if I gave them their dream nominee they'd oppose it just because they refuse to work with me".

tim maguire said...

Mark said...If Republicans want to telegraph an obstructionist agenda, Obama would be foolish not to take advantage of that.

Yep, declaring so quickly that they would not confirm an Obama nominee, sight unseen, was a huge own-goal. I will be stupefied if the Democrats let this opportunity get away.

PB said...

I wonder who would accept the nomination? Holder likely wants to cash in in the private sector for a while and going to the SC would complicate that. Likewise, there are many others that would make the same calculation, particularly if a Democrat gets elected as president. In that case the money will flow even faster to Democrat cronies.

David said...

"Don't waste your time thinking we are talking about a person who will actually serve on the Court."

Smartest thing yet said on this topic. I wonder who would be willing to be the sacrificial lamb? Probably lots of people, including some who would not realize that they are being lead to the slaughter.

Todd said...

Brando said...

Or Obama could propose getting Ginsburg to retire now, and working with the Senate to find two moderates to replace Scalia and Ginsburg. He could point out that they could do this now, or wait until possibly President Clinton and a Democratic Senate (a distinct possibility, and maybe a likelihood with Trump and Cruz both leading the GOP primaries) decide to roll through a swampy dreadlocked liberal to take over Scalia's seat.

Possibilities abound!

2/16/16, 8:20 AM


That right there is LOL write HUGE! Obama work with anyone? Expecially the Senate? That right there be funny! Obama can't even work with himself, let alone those evil Repubs!

MayBee said...

Then Obama can say "see, even if I gave them their dream nominee they'd oppose it just because they refuse to work with me".

OTOH, now they don't have to play a stall game, or smear a candidate (ala Bork or Thomas) as a ruse. This is honest.

And anyone who cares, knows it.

harrogate said...

"Then Obama can say 'see, even if I gave them their dream nominee they'd oppose it just because they refuse to work with me.'"

And, he'll be telling the truth when he says it.

LarsPorsena said...

Blogger MayBee said...
Lest we forget reality, here is a tweet from Allahpundit:

Allahpundit ‏@allahpundit 1h1 hour ago
Asked their opinion of Scalia, narrow plurality of Americans say they never heard of himlink …

2/16/16, 8:40 AM
--------------------------------

It should be a comfort to know that the same plurality probably never heard of Joe Biden.

MayBee said...

Yes, because Obama is going to give them their dream nominee.

Let's see what happens if he does.

MadisonMan said...

This is McConnell's second unforced error

McConnell is an idiot in an echo chamber surrounded by fools. He needs to get out of DC and listen.

Brando said...

"OTOH, now they don't have to play a stall game, or smear a candidate (ala Bork or Thomas) as a ruse. This is honest."

When did honesty ever help? That makes this a Kinsley Gaffe!

Actually I could see the benefit of a stall game. The confirmation hearings (if done smart, rather than the usual "let me try and get a sound bite for the news" claptrap) could be an excellent chance to rake a nominee over the coals and demonstrate the extremism of Obama's picks, letting the GOP electorate see what's at stake in the election, and ultimately voting down the nominee because Obama isn't even seriously trying to find someone of Scalia's stature.

Why give Obama a chance to pretend he's the reasonable one? Let the Dems look crassly political, expose what they're trying to do (and why you need to vote down these nominees) and get the same result.

Titus said...

A gay asian would be perfect

Brando said...

"Yes, because Obama is going to give them their dream nominee."

Oh, we all know he won't. But he can rightly say that they would oppose anyone, even the next Scalia, just because Obama would be the one doing the nominating. It makes it more about Obama and less about why they would oppose the sort of person he would pick.

MayBee said...

Can her *rightly* say that, though? I'd like to see him nominate the next Scalia. Let's see how fast the Senate can suddenly decide to work with Obama after all.

MayBee said...

Here's how I see McConnell's statement: It was honest. Now Obama knows anyone he puts out there is a sacrificial lamb, and he is opening them up to ruining their career for the Democrat party. It dares him to throw someone out there knowing they will not be confirmed.

If McConnell hadn't announced it, they'd be stuck with the specter of holding hearings about the court's first Black Female Justice, and hearing the backlash about how mean or disrespectful or racist they are (see for example Althouse's post about feeling protective of Hillary). You think Republicans could get away with doing to a minority nominee what the Democrats did to Thomas? No way.

Bob Boyd said...

Watch Obama nominate a minority, appeals court judge the Republicans previously confirmed in a unanimous vote.

MayBee said...

Democrats can get away with accusing a black male SCOTUS nominee of sexual harassment. They can get away with continuing to call for his removal from the bench and mocking his intellect. Democrats can get away with keeping Miguel Estrada off the bench because he is latino, and they can get away with hounding the nation's first latin AG out of office. They can get away with saying the nation's second female VP nominee didn't have her own baby. They can get away with making fun of Bobby Jindal's birth name.

Republicans can't get away with that. So it's better to have announced that we weren't going to play the game this time.

Rick said...

if the shoe was on the other foot the Dems would have blocked any GWB nominee in 2008 (unless he offered them some additional concession). And McConnell is not wrong to block this time, either--it's the saying it out loud that is political malpractice.

There's a tactical difference between the parties. The left understands (correctly) that the Democratic leadership is pulling as far left as possible and so trusts them to block any candidate who might endanger their interests. The Republican establishment has forfeited that trust by acting against their supporters interests too many times. So McConnell has to say this because he faces circumstances Dems don't face.

MayBee said...

Bob Boyd- appeals court nominations aren't the same as SCOTUS nominations. Republicans can turn around and say, "See? We've given Obama his nominees in the past. We're reasonable! But this nomination to SCOTUS at this time isn't reasonable"

Bob Boyd said...

MayBee said

"If McConnell hadn't announced it, they'd be stuck with the specter of holding hearings about the court's first Black Female Justice..."

Yeah, it's probably worse to hold hearings to shoot down such a nominee than to refuse any hearings in the name of letting the voters have a say.

Brando said...

"Can her *rightly* say that, though? I'd like to see him nominate the next Scalia. Let's see how fast the Senate can suddenly decide to work with Obama after all."

He can rightly say it because technically it'd be true. Sure, it'd be purely hypothetical (unless he lost his wits and picked a very conservative nominee somehow) but if the other side rules out voting for ANYONE he nominates, he can say it's not because of anything wrong with a particular nominee, but rather because he's doing the nominating. I think they'd come out ahead on this one if they at least made a pretense that they'd consider who he'd put up, and then (when he inevitably picks someone too liberal for them) they could tear it down as an attempt to make political hay while the sun shines.

Besides, the whole strategy banks a lot on the Dems not winning both the WH and the Senate this year--a distinct possibility. Then you wouldn't even have a GOP majority to review the nominee.

Brando said...

"If McConnell hadn't announced it, they'd be stuck with the specter of holding hearings about the court's first Black Female Justice, and hearing the backlash about how mean or disrespectful or racist they are (see for example Althouse's post about feeling protective of Hillary). You think Republicans could get away with doing to a minority nominee what the Democrats did to Thomas? No way."

I don't see how McConnell refusing to consider anyone prevents Obama from doing that anyway. Then, they're not even giving "first female black gay war hero justice" a hearing at all.

And if they did a hearing, they certainly shouldn't come across bullying or smear the nominee--far from it! Use a real lawyer (not Senators) to do the questioning, get at their rulings and cases, then vote--you can always defend a vote down as "I had reservations about how they would rule based on X" and that sort of thing. Sure, the Dems would still try to make you look racist, etc., but it's a far more defensible position. Certainly more so than ruling out any nominee out of hand.

Todd said...

I also read elsewhere that there is precedent that lame-duck Presidents don't nominate SC justices. It is left to the next person to do that. McConnell should have phrased it that way.

Oh who am I kidding, the GOP was/is going to get kicked in the nuts by the press no matter what they do or say.

On the other hand, for a politician, McConnell makes a LOT of unforced errors. Is he on Hillary's payroll?

Brando said...

"I also read elsewhere that there is precedent that lame-duck Presidents don't nominate SC justices. It is left to the next person to do that. McConnell should have phrased it that way."

I guess my question is how lame is a lame duck? If this happened in February 2013, should the GOP have said "sorry, wait til the next president takes office, lame duck!"? Does it matter that this is Scalia and not Ginsburg being replaced? (I'm sure that's a key consideration as it affects the political balance of the court).

To me, all that really matters is the president nominates, the Senate approves/rejects. That balance means no one gets approved unless both Obama and a Senate majority agree. In reality, that's most likely impossible, and we all know it--but the GOP should not be the one announcing "no deal" out of hand. In terms of the "soft middle"--Dem and GOP voters who are far from their parties' base, and unaffiliated moderates who are likely disgusted with both the GOP and Obama--the idea that the Senate is literally saying "you don't get to pick, wait a year and we'll see who the president is" just makes them look unreasonable. And I would love to see another Scalia (but figure that's like finding another Oliver Wendell Holmes).

Simon said...

And of course, when his wholly-political nominee is rejected or ignored, he will whine that the Republicans are playing politics.

readering said...

Obama is going to assume Clinton wins in November, and will pick someone distinguished enough that Clinton will be obliged to renominate in January after the nomination battle helps her win.

Bruce Hayden said...

I just don't see it happening, because if it did, Obama would be nominating a white heterosexual Protestant, which he likely will not do. Probably as far as he will be able to do to pander to a demographic is nominate another woman.

Warren is probably out because she didn't graduate from an top law school, and is a liar. I see her nomination being an excuse for the Republicans to hold hearings, concentrate on her lying, and weak scholarship, then vote her unqualified, all to wreck her Presidential chances. Then, the Senate Majority leader can justify not giving her a vote.

I do think that the universe of actual viable nominees is probably a bit more constrained than is suggested above. They really need to be an appellate judge, either at the federal or state level. And, probably a graduate of a top law school. Maybe go beyond Harvard and Yale, but not by much. And, as I said above, female is probably a slight plus. But heterosexual. The problem for Obama is the question of how hard would it be for the Republicans to reject the nominee as unqualified, and how strong the case. He needs to be able to make a strong argument that the Republicans rejected her on purely political grounds. Thus, my argument against Lizzie Warren.

Brando said...

"And of course, when his wholly-political nominee is rejected or ignored, he will whine that the Republicans are playing politics."

That's standard practice--no one expects the Dems or Obama in particular to ever say "yeah, the GOP is playing fair" or "clearly they did not like this particular nominee." Of course Obama will say "the GOP will reject anyone I put up, no matter how qualified!" The difference here is he doesn't even have to say it because McConnell just said it for him.

It's not that Obama is some brilliant politician--it's that when up against the GOP he looks like Alexander cutting through the Persian army.

Brando said...

If I'm Obama, this is how I play the card McConnell so unwittingly dealt--as Bruce said above, it'd have to be an appellate court judge, clerkship experience and graduated from Harvard, Yale, or at least one of the top five ranked law schools. Young--he wants his legacy to have at least thirty years experience, so I'm guessing someone in the forties, no older. A woman or racial minority is a plus (a Hispanic is a big plus), but not crucial. Also, fully vetted from any personal scandals or unfortunately worded articles/opinions.

The crucial thing her is to pick someone who is at least plausibly moderate, or moderate left (maybe slightly more left version of Kennedy, or slightly to the right of Breyer), and who has had conservatives go on the record with praise--ideally even praise from Scalia himself. This way, Obama's allies in the media can write glowing tributes about how this is a "consensus pick" and "even conservatives have had nice things to say about them".

Then, when the GOP refuses to move the nomination, or considers and rejects it, Obama can say "look, I tried compromising by picking someone moderate who even [name conservative media pundit, politician or judge] thinks is perfect for the court! And they reject simply because it's me doing the nominating."

Then a news cycle about the dysfunctional Republicans in the Senate, how they hate Obama with a blindness that prevents any reason, and a nice boost for the Dem challengers in the swing states who can appeal to moderates and soft GOPers who are tired of this crap, and instead of blaming Obama for stacking the court with leftists are blaming the GOP for pre-judging anything that comes up the pipe.

MayBee said...

, how they hate Obama with a blindness that prevents any reason, and a nice boost for the Dem challengers in the swing states who can appeal to moderates and soft GOPers who are tired of this crap, and instead of blaming Obama for stacking the court with leftists are blaming the GOP for pre-judging anything that comes up the pipe.

What moderate is motivated by the idea that the GOP hates Obama?
Didn't we already see how motivating that argument was in 2014?

MayBee said...

The Dem play won't be about Obama. It will be about getting Emily's list voters to get out and vote for Hillary or Bernie so women's rights won't be taken away, and black voters to keep Affirmative Action and the Voters Rights Act.
But that happens whether someone gets a hearing or not.

David Begley said...

Brando

Jane Kelly of the 8th Cicuit fits your bill. Also a classmate of Obama's. Former Iowa federal public defender. Approved 97-0. But she's white.

Bob Boyd said...

@ Brando

I don't know. The Dems are saying "Obama deserves", "Obama should have", "Obama Obama Obama", but he is just one man and not a very popular man either, these days.
This SC appointment will determine if we continue to be a nation with a stable, reliable legal foundation upon which Americans can plan and build their lives or if our constitution will be continually re-written on the fly.
The Republicans can argue that such a momentous decision should be made by the people in the upcoming election through their choice of president. This is an opportunity to showcase a stark difference between the parties for a change.

Brando said...

"What moderate is motivated by the idea that the GOP hates Obama?
Didn't we already see how motivating that argument was in 2014?"

Different electorates to deal with--and different states will be crucial. Its' not that they're defensive of Obama, its' that they see the GOP as so focused on Obama they're losing the ability to reason. Most of Congress is isolated from this, with safe states and districts, but there's about four purple states (arguably three are blue) where Senate control depends on those Republicans keeping the seats.

"Jane Kelly of the 8th Cicuit fits your bill. Also a classmate of Obama's. Former Iowa federal public defender. Approved 97-0. But she's white."

He could get away with a white pick, if it's a woman (plus, he's replacing a white man). A minority would be nice for him, but mainly I think he'd want to be the first president since Reagan to put three justices on the Court, and tilt the Court to the left, which this would do.

Brando said...

"I don't know. The Dems are saying "Obama deserves", "Obama should have", "Obama Obama Obama", but he is just one man and not a very popular man either, these days.
This SC appointment will determine if we continue to be a nation with a stable, reliable legal foundation upon which Americans can plan and build their lives or if our constitution will be continually re-written on the fly."

All of that is true, but it can just as easily--even better--be accomplished via hearings (even if they will vote down the nominee anyway). What better way to let people (and conservative voters) see what's at stake than through a well run hearing? And I don't think anyone (except maybe black voters, among whom he's still popular) will respond based on what is owed to "Obama" so much as the precedent of whether a president can nominate a justice and expect a fair (if hostile) hearing. I know I'd feel that way if this conversation were happening in early 2008.

"The Republicans can argue that such a momentous decision should be made by the people in the upcoming election through their choice of president. This is an opportunity to showcase a stark difference between the parties for a change."

The problem is that sets no real standard--we're almost a year from when the next president takes office, and the president still does have constitutional powers to nominate here. That doesn't mean they have to approve anyone, or any particular nominee, of course--but to phrase it as "don't nominate anyone because the voters in November should make that decision" implies that the voters didn't already make the same decision for 2012, which applies to all vacancies from early 2013 until early 2017.

I'm not saying Obama should get someone confirmed, and I'd hope the Senate GOP doesn't approve anyone who will set back those issues you list. I'm just saying it looks very bad to announce a strategy that is on its face unreasonable.

mccullough said...

Obama needs to think about placating certain white ethnicities. It's not enough to appoint a white person. He needs to think about what the Italian Americans, Irish Americans, German Americans, Polish Americans, and even the Scots-Irish Americans think. (Swedish and Norweigian Americans are too small of a constituency to worry about and most of them are in Minnesota anyway).

The Italian Americans have a good argument that this is their seat. When Brennan left the Court, Kennedy was a recent appointee, so the Irish couldn't really complain much about that WASP Souter taking the Irish seat. But there are no other Italians on there. So Obama needs to appoint one.

harrogate said...

"so much as the precedent of whether a president can nominate a justice and expect a fair (if hostile) hearing. I know I'd feel that way if this conversation were happening in early 2008."

Yes.

Bob Boyd said...

I think you're making good points and McConnell's announcement seemed rash to me at the time, but it is what it is now. Maybe it will turn out to be for the best.

After all, the voters didn't really make the same decision in 2012 because there wasn't an actual, balance-changing vacancy then, other issues were at the fore, so I think you can still argue persuasively that they should have the say now.

Holding hearings that are only for show is problematic. It takes the focus off of Obama demanding what he sees as his due and puts it on whatever nominee is before the committee. The nominee might turn out to be a very sympathetic character and would have a lot of help in that department from the media.
Also, you might lose control. Senators are subject to all kinds of differents pressures. They might not all stay in lock step.

Brando said...

"Holding hearings that are only for show is problematic. It takes the focus off of Obama demanding what he sees as his due and puts it on whatever nominee is before the committee. The nominee might turn out to be a very sympathetic character and would have a lot of help in that department from the media.
Also, you might lose control. Senators are subject to all kinds of differents pressures. They might not all stay in lock step."

That's the risk--just like how with the Planned Parenthood and Second Benghazi hearings, instead of a devastating, game changing grilling we got preening Senators mugging for the cameras to please donors back home, and giving the Daily Show material. If I were running it, I'd have a committee appointed lawyer do the questioning (not sure how I'd prevent Senators from trying to get in there) so it stays on focus, and builds on previous answers, and enters well vetted exhibits. Respectful, but thorough.

Would it be for show? I'd say almost definitely because I can't picture Obama nominating someone who would meet the GOP's criteria. If he were replacing even Kennedy, it would be easier, but Scalia was more than just a conservative jurist. And Obama has no interest in putting a conservative up there. But I'd still want to hold the hearings fairly, and vote the (expected) nominee down on those merits.

I think they will hold hearings, but sadly it already looks to the public like the GOP isn't going to be fair, and if they let the Senators dominate the hearings and go haphazard, it'll play into that narrative even more.

And if the Dems get the WH and Senate next year, get ready to have someone crammed through who makes Sotomayor look like a reasonable moderate.

machine said...

"What makes the Republicans' effort all the more galling is that it flies in the face of their oft-professed, unwavering allegiance to the Constitution, a document that says the president “shall nominate,” with the “advice and consent of the Senate,” our Supreme Court justices. It doesn’t say anything at all about these duties and obligations being suspended a year or so before each president is scheduled to leave office.

The GOP effort to block an Obama nominee from the court isn’t about letting voters have their say, or respecting past precedent, or demonstrating strict adherence to the Constitution. In fact, it’s precisely the opposite."

sick burn...

David said...

"I'm just saying it looks very bad to announce a strategy that is on its face unreasonable."

Unreasonable? It is completely reasonable if you start with the Republican premise. That premise is that an Obama appointment would create a result oriented activist court that would overturn established precedent and use the Supreme Court to advance a political agenda that should be determined by elective politics and legislative representatives. It's about your concept of what a democracy is. There's nothing more fundamentally important, and therefore it's completely reasonable to say you are going to defer the choice until after the presidential election.

Democrats win the election, they will get the nominee they want. Democrats lose the election, Republicans get the nominee they want.

Now what in the world is unreasonable or undemocratic about that?

(And don't argue with me that the premise is wrong. The premise is part of the political choice that the voters get to make. If they elect the Democrat, they will have told the Republicans that the premise is wrong, or that they don't care that the premise is correct.)

Real American said...

Since the GOP Senate has already ADVISED the President that its CONSENT will not be forthcoming, it doesn't really matter who this lameass duck nominates. The nominee won't get through even if its a white male christian and all the demagoguing his/her/its race or sex or who it fucks or what body parts it wishes it had won't matter one bit. The nominee is not getting through. Period.

eric said...

I find myself agreeing with MayBee here. This is a smart play. McConnell is in a pretty safe seat. He can take most of the best here. The handful of Senators who think they need cover can call for hearings, even if they don't mean it, and the majority leader takes the blame.

Brando said...

"Unreasonable? It is completely reasonable if you start with the Republican premise. That premise is that an Obama appointment would create a result oriented activist court that would overturn established precedent and use the Supreme Court to advance a political agenda that should be determined by elective politics and legislative representatives. It's about your concept of what a democracy is. There's nothing more fundamentally important, and therefore it's completely reasonable to say you are going to defer the choice until after the presidential election."

That premise justifies rejecting any nominee he nominates who fits that description. It doesn't justify saying "wait 11 months, this president cannot nominate anyone we will consider". Both courses of action result in no approved nominee until the next administration, yet the former is constitutional and defensible, the latter sounds (and is) unreasonable.

Why not put the onus on Obama and make the case for why he is the one being unreasonable and trying to put a leftist hack on the court?

Simon said...

Brando said...
"I know I'd feel that way if this conversation were happening in early 2008."

I'm sure that Sen. Schumer would like to say the same thing. Alas, internet, and stuff.

eric said...

Speaking of consent, I'm confused by the Democrat game here. They pretend like Obama can force himself on the Senate without their consent. Doesn't no mean no?

Bruce Hayden said...

As for minorities, we already have a Black and a Hispanic. Another of either right now would be counter-productive - the excuse of countering Thomas just won't wash. Middle Eastern and/or Muslim won't make it either. Not with them killing people, and esp. Christians and Jews. Won't get a hearing, no matter how well qualified. I really don't think that the mainstream is going to allow a Muslim on the Court at this point, when their vote could conceivably result in protecting terrorists.

I don't see Obama really caring whether some white skinned Roman Catholic is an Italian, Irish, or even English. There are still 5 of them on the Court right now. The only European demographic that would help him are White Protestants.

The other alternative I see is Asian. And, not western Asian (i.e. Middle Eastern), because of the religious issue, but somewhere from India east. Which essentially means Indian or Eastern Asian (i.e. Oriental). The problem there, if there is one, is that only now are Eastern Asians seriously entering the legal field. A generation or so ago, they tended to be pushed very hard into medicine and science. The one East Asian I knew in LS nearing 30 years ago was there despite his family (who had wanted him to be a doctor). Because of their culture, these demographics still seem wedded to the Dem party, despite being treated as second, or even third, class citizens, always being pushed to the side by the much more pushy Blacks, Hispanics, Unions, LGBTers, etc. This would go a long way at salving their pride.

MayBee said...

Why not put the onus on Obama and make the case for why he is the one being unreasonable and trying to put a leftist hack on the court?

What if it's not a leftist hack, but just a Kagan-style leftist?

Static Ping said...

If you want to know how this will be spinned, "the Republicans are wrong" is always the position of the mainstream media. There is absolutely no position that the Republicans could have taken on this that would be correct, other than provide unanimous support for whomever Obama nominated, then impeach and remove Roberts, Alito, Thomas, Kennedy, and possibly Breyer and Ginsburg to be replaced by more Obama nominees. Are there plays that works better than others? Sure. But really at this point all we are debating is if we prefer getting hit in the face, slugged in the gut, or kicked in the balls. There was no winning play.

Really, the bigger issue here is the Republican Party's own survival. Simply put, if the Republicans were to approve of Obama's nominee, the party is dead as the Whigs. If they imply that more "failure theater" is in the works, even if no failure materializes, it may still not survive. The base is half convinced that the party hates them. Any screwing around here would get them off the fence. As far as keeping the Republican coalition together, the strategy provided here was correct. The only debate is on tactics. McConnell's statement did lay his cards on the table immediately, but it also preempts any racist, etc. claims since any nominee is considered unacceptable. Not that the media will buy into that preemption, but Republicans are always wrong anyway.

This concern that the Republicans could lose the Senate seems rather odd, given that I was reading articles about the Republicans could lose the Senate (and then potentially retake it the next election) as of the end of the last election. This is recycled news for concern trolling.

Brando said...

"I'm sure that Sen. Schumer would like to say the same thing. Alas, internet, and stuff."

Sort of proves my point--I find Schumer repulsive and now he looks like a hypocrite if he doesn't agree with the GOP to postpone.

"What if it's not a leftist hack, but just a Kagan-style leftist?"

Oppose that too--in fact, oppose even a Kennedy-style moderate. The argument to make is that the Court would be diminished if Scalia is not replaced by someone of his stature and inclinations, because it preserves a sort of judicial balance (he was unique even among the conservative justices). Who says they have to approve anyone they don't like? I'm certainly not saying that.

Alex said...

We need more wise minorities on the court.

Alex said...

So if Obama nominates somebody who is anti-Consitution but has no scandals in his/her closet, how can the GOP shoot it down without ruining Trump in the general?

Tyrone Slothrop said...

Obama would be sending this message to whomever he nominates:

You will never be a member of the Supreme Court.

MayBee said...

The argument to make is that the Court would be diminished if Scalia is not replaced by someone of his stature and inclinations, because it preserves a sort of judicial balance (he was unique even among the conservative justices). Who says they have to approve anyone they don't like? I'm certainly not saying that.

You make that argument by waiting until someone who would appoint someone with Scalia's stature and inclinations is elected. Because the idea that Obama is going to nominate a conservative- or anyone is even expecting him to nominate a conservative- seems absurd to me.

I guess I don't get the point of having a bunch of hearings only to vote the nominees down. They open themselves up to all kinds reports of them beating up the [name the minority] nominee. Why not just announce you aren't going through the charade?

If the result is the same- a 9 month delay- why not just take the less risky way?

MayBee said...

Tyrone- That's the line I'd use. If Obama nominates a minority, I would point out to anyone upset the minority isn't getting a chance that Obama knew he was throwing this nominee to the wolves. That Obama is the one abusing the nominee.

Brando said...

"If the result is the same- a 9 month delay- why not just take the less risky way?"

I guess thats' where we disagree--I can see it being less risky to have the hearings and use the news cycle to hammer the Left and make the case for a conservative jurist. But you have a point--the GOP tends to screw those things up so badly (how they botched the more recent Clinton Benghazi hearing is an example) so maybe it's safer just to say "no dice". The optics look bad, but they haven't really done well with the optics of hearings anyway.

In any event, what's done is done--a lot more now hinges on November, and considering how the GOP has gone so far I don't think there's enough whiskey in the world to get through this!

William Chadwick said...

I said it previously but I'll say it again: Il Dufe will replace Scalia with yet another Constitution-shredder to his liking, while either the Alinskyite Witch or the Crazy Socialist Grandpa with succeed him in the White House; and the US will become Venezuela del Norte . . . all the while the GOP does nothing effective to stop it, and service State-fellators like garage mahal and Robert Cook beat the drums to accompany our sad death march down the Road to Serfdom. This republic is doomed. Buy guns; buy gold.

Basil said...

I bet the Republicans would confirm Ted Cruz to the Court in five minutes. Problem solved! Next problem.........

Todd said...

Static Ping said...

If you want to know how this will be spinned, "the Republicans are wrong" is always the position of the mainstream media. There is absolutely no position that the Republicans could have taken on this that would be correct, other than provide unanimous support for whomever Obama nominated, then impeach and remove Roberts, Alito, Thomas, Kennedy, and possibly Breyer and Ginsburg to be replaced by more Obama nominees. Are there plays that works better than others? Sure. But really at this point all we are debating is if we prefer getting hit in the face, slugged in the gut, or kicked in the balls. There was no winning play.

2/16/16, 1:22 PM


Well when you put it that way, McConnell's actions make sense as in "the only way to win is not play the game"...

jr565 said...

Mark wrote:
If Republicans want to telegraph an obstructionist agenda, Obama would be foolish not to take advantage of that.

Openly announcing that no one will be approved is stupid tactics. I hope McConnell enjoys being minority leader, as he seems to be trying to give the senate back to Dems.

but that will already offset charges of racism or sexism we know your side will bring. As in, repubs wont vote for the black nominee because they are (insert identity politicial class here). Repubs are already on record saying they woudl block any.
When Reagan borked Robert Bork and refused to confirm him they forced Reagan to appoint a more moderate in his place. And we got Kennedy.
But who can bet that Obama wil demand the extremist get through. and he will try to Bork the repubs for denying that person access because he will play the racism/sexism card.

Have Obama nominate a conservative and/or moderate and MAYBE you will see repubs change stance.

jr565 said...

"Since the GOP Senate has already ADVISED the President that its CONSENT will not be forthcoming, it doesn't really matter who this lameass duck nominates. The nominee won't get through even if its a white male christian and all the demagoguing his/her/its race or sex or who it fucks or what body parts it wishes it had won't matter one bit. The nominee is not getting through. Period."

If he actually nominated a republican a lot of repubs have already said they'd consider voting for him. But they know he wont actually do that.

Matt said...

What's funny and disheartening is that if the tables were flipped and a liberal justice had died and the president were a Republican the Senate Democrats would be saying the same thing about how the President shouldn't nominate anyone. It's just absurd. I don't know how we get anything done in government. Let's scrap the entire government and let the those who write political commentary run the country.

Rick said...

Matt said...
What's funny and disheartening is that if the tables were flipped and a liberal justice had died and the president were a Republican the Senate Democrats would be saying the same thing about how the President shouldn't nominate anyone. It's just absurd.


We don't have to hypothesize about this. Chuck Schumer is on video saying exactly this in 2007, a year and a half before the end of the Bush presidency.

Plus Schumer, Obama, and Clinton all voted to filibuster Alito's nomination.

holdfast said...

Maybe McConnel and co calculate that the Dems have been whining about "GOP obstructionism" for so long that voters will just see this as background noise.

SukieTawdry said...

I'm hoping for someone out of really left field like Patricia J. Williams. Isn't it time we got a critical law/race theorist on the Court?

Zach said...

Nominating someone attractive is the best move on the board, but I'm not sure how strong it is in an absolute sense. Loss aversion is very strong, and you can count on people freaking out about anything controversial or too left wing.

The nominee is going to be a stationary target up until the election, but won't actually make it onto the court. That's a tough combination.

machine said...

...17 days.