February 14, 2016

"Will the G.O.P. Response to Antonin Scalia’s Death Hand the Election to the Democrats?"

Asks John Cassidy at The New Yorker, and you might wonder why the question doesn't work the other way too: Why not ask Will the Democratic Response to Antonin Scalia’s Death Hand the Election to the GOP?

The way I asked the questions yesterday was:
Will liberals overreach and show too much of a raging desire to control the Court and make it solidly liberal at long last, touching off a reaction among conservatives? Or will conservatives flare up with hostility to women's rights and gay rights and affirmative action and all the many issues that make them look too mean and ugly?
I gave some balance to it, a question for both parties, but you can see by the difference between my questions that the GOP is tempted in a different way, lured to move the social issues forward and alienate people. Like what happened back in the War of 2012, the War on Women.

But let's see why Cassidy thinks the GOP is exposed in a way that the Democrats are not. He's saying that political maneuvering to hold the nomination for the next President is an "apparent contravention of precedent and the U.S. Constitution." Nice use of the word "apparent" to avoid responsibility for an actual constitutional law interpretation.

But, really, does it matter what the Constitution means? (Especially now that Scalia is dead. It can mean whatever we need it to mean now. The bulwark is gone. Let creativity run wild.)

Just as Donald Trump wrings political energy out of saying that Ted Cruz is not a "natural born citizen," Democrats can get something out of saying Obama has the right to fill the vacancy. The President has a power to nominate new Justices, subject to the check of the Senate, which must confirm. It's balanced power, to be played out politically.

So what if the GOP-dominated Senate plays hard? Cassidy says it will "prompt" "outrage" "among Democrats and independent-minded Americans who dislike partisan warfare." The GOP "appears to be intent on hurtling into a deep pit." Obviously, Cassidy wants to scare the Republican Senators away from pushing back, checking the President's power with their own power, but you've got to play chess games looking ahead several moves.

The GOP will also say it's partisan politics, and this argument will be boosted by the usual claim that liberal Supreme Court Justices infuse their opinions with political preference that does not belong in constitutional interpretation. They'll celebrate their dead icon Scalia, whose method of interpretation will be presented as politically neutral and legally solid. We need another Justice like him, they will say. How terrible to allow Obama to install the 5th vote that achieves a liberal majority on the Court, they will say. Not only is the delay crucial, but the next President must be a conservative, they will say.

Cassidy says:
If the Republicans block the nomination without properly considering it, which also seems likely, a huge political row will ensue, enveloping the Presidential race....

Small wonder, some senior Democrats already appear to be dancing a jig
"Dancing a jig"?! Dancing on a man's grave? Is it not obvious how the GOP will respond? That was the basis of my question yesterday: "Will liberals overreach and show too much of a raging desire to control the Court and make it solidly liberal at long last, touching off a reaction among conservatives?"

The jig of raging desire is revolting to those who do not share the Democratic orientation.

ADDED: The title of this post is the title of Cassidy's essay that appears with the essay, but in the sidebar "Most Popular" list the title is "Will Scalia’s Death Boost the Democrats?" That's a much uglier image, depicting the dead body as a step stool. The Democrats are just hopping up on it. In the more sober title, the bad behavior comes from the Republicans and the Democrats stand by decorously, merely accepting what is handed to them.

AND: Here's the membership of the Senate Judiciary Committee, through which any nomination must pass. One notable face: Ted Cruz. What an opportunity for him to perform in The Theater of Proper Constitutional Interpretation. The GOP hold the majority and can calmly control the vote. The trick will be maintaining scrupulous dignity and veneration of constitutional principle. Expect Antonin Scalia to be canonized as the Saint of Constitutional Principle. The Democrats will not have him as their scary monster anymore. Dead, he's an angel. It will be hard to say his seat should be filled by someone unlike him.

That game has been played successfully: I'm thinking of the vicious fight that flared up when George H.W. Bush nominated Clarence Thomas to take the seat that Thurgood Marshall had vacated. That happened in 1991, with the presidential election a year away. Bush won that fight, even with a Democratic majority on the Judiciary Committee, but he proceeded to lose the election. Obama doesn't face reelection, so he can perhaps absorb the heat, and he has an opportunity to pick someone that will be very damaging for the other party to attack. I'm sure he's working on an exquisitely strategy.

ALSO: "Scalia's Grave-Dancers Deserve a Harsh Verdict," by Stephen Carter. 

123 comments:

Meade said...

The jig is up. Up on the roofs of Madison yesterday. As I drove home from the store, t saw thousands and thousands of them, dancing their jigs.

Jack Wayne said...

How's Obama expect it to go? The Republicans supposedly have 5 vulnerable Senators. So McConnell can't let the nomination come to a vote. Not to mention the others running who won't like a vote like that in their record. So Obama is doing it either because he is as inflexible as he's always been. Or because he has some crafty plan to influence voters into voting for Hillary and the Democrats across the board. Either way, the issue will be the top issue of the election. So then we have the third choice: Obama as the Great Divider. As Turmoil the Antagonizing Pesident. Obama wants to transform America more than anything and unrest will accomplish a lot for him. And it has the added bonus that he is being exposed in the Middle East as a complete failure and no one will notice except the rest of the world.

Michael K said...

McConnell should have kept his mouth shut or just said, "We will give any nominee deliberate consideration."

As usual, he screwed up by trying to sound tough for GOP voters who think he is a pussy.

Two, the Brennan precedent worries me. Eisenhower made an recess appointment of Brennan "to avoid a vacancy in the court" and did it in 1956 during his re-election campaign. McConnell has now given Obama cover to do the same thing with his too big mouth.

Oso Negro said...

At the law school in Wisconsin, the Constitution can mean whatever you need it to mean now. Here in Texas just yesterday, at the same gun show where a black Christian Conservative cheerfully sold me a replica of the battle flag of the Army of Northern Virginia, many of us think it means what it says. I know, hopelessly retro. I also don't think it really matters so much who is picked, because a nominally conservative court already upheld Obamacare, and discovered a previously hidden right to homosexual marriage in the text. So pretty much the USSC will do whatever progressives want. Constitutional government, if not dead, certainly is feeling poorly.

traditionalguy said...

Wait until Bush III takes the oath, and he will
nominate Barbara Bush. She will have earned it if he wins

David Begley said...

On MTP John Kasich said a really wise thing. No vote this year means the voters have an indirect say in who gets the SCOTUS nod. If Hillary wins, we get one type of Justice. Same if Trump or Cruz wins. Let's make this a choice of the people. Democracy in action. It will spur turnout.

Chuck said...

Trump gets all sorts of unwarranted credit as some sort of alleged genius as a political strategist.

Trump's message of "Delay, delay, delay," is such a wrong-headed, flat-footed political mistake. It's the worst slogan imaginable.

Now; not for a moment, would I suggest confirming somebody like Goodwin Liu, or Eric Holder. The Senate should vote. Republicans should vote their interest. But even Scalia would regard "Delay!" as a subversion of the Constitution. OF COURSE Obama is going to nominate someone. The Senate will have to deal with it.

And Republicans better be careful about waiting for November. Because the Senate might not be Republican in 2017. Remember the last couple of times a Republican tried to get a SCOTUS nominee through a Democrat Senate? Remember Robert Bork? Then Anthony Kennedy? Then Clarence Thomas? Nobody is more skilled at fucking with the nomination process then the Democrats on the Senate Judiciary Committee.

Yancey Ward said...

Obama will not go the recess appointment route since such an appointment expires at the end of Congress, and it lets Republicans off the hook for non-confirmation until Obama is gone. The cases before the court as of today, and the lower court decisions already favor the Left for the most part if the result is only a 4-4 split. The only recent action the court has taken in which having a fifth vote might be worthwhile to the Left is the stay that was just issued on the Clean Power regulation- Obama and his administration would like to have that lifted ASAP.

LarsPorsena said...

"At the law school in Wisconsin, the Constitution can mean whatever you need it to mean now. .."

Yep, it has all the dignity and intellectual integrity of any South American court.
From the Great Lakes to Patagonia they are all the same.

Birches said...

It must be so nice to live in the Coastal Media Elite Bubble. I bet Cassidy doesn't know anyone who disagrees with him.

All the Republicans have to do is say that Scalia was the fifth vote for Heller. Turnout will be historic.

Dr Weevil said...

Michael K:
If Obama follows "the Brennan precedent", Scalia fans have nothing to worry about. Here's Wikipedia, which calls him "the seventh longest-serving justice in Supreme Court history" and "a leader of the Court's liberal wing" in the second sentence:
"Presidential advisers thought the appointment of a Roman Catholic Democrat from the Northeast would woo critical voters in the upcoming re-election campaign for Eisenhower, a Republican."
Standing in for the Chief Justice, Brennan gave a speech which "seemed to suggest a marked conservatism, especially on criminal matters. Other factors playing into Brennan's appointment were his Catholicism, his status as a state court judge (no state judge had been appointed to the High Court since Benjamin Cardozo in 1932), and Eisenhower's desire to appear bipartisan after his appointments of two Republicans: Earl Warren (former Governor of California) and John Marshall Harlan II."
Too bad the odds that Obama will follow "the Brennan precedent" and appoint an actual conservative Republican are about 1 in 1,000. The denominator would be larger but I figure it's conceivable that he could choose someone while drunk, drugged, or suffering the after-effects of a minor stroke.

Andrew Koenig said...

It would not surprise me for a moment if Obama said something like "Those Evil Republicans (TM) are trying to stop me from doing my constitutional duty to replace Justice Scalia. Therefore, in an effort to get the people to pressure them to come to their senses, I am closing the national parks until Scalia's successor is confirmed."

garage mahal said...

Why not ask Will the Democratic Response to Antonin Scalia’s Death Hand the Election to the GOP?

You have to just make shit up for it to be effective. But I can see the media falling for it. Fulfilling duties as president is partisan.

"Why not wait????" "For the good of the country!" "Let the voters decide!"

AprilApple said...

Are democrats fascistic hate filled ghouls who make the rules up as they go, conveniently forgetting their own precedent on the matter?

Oso Negro said...

Say! Is "jig of raging desire" a micro-aggression or racism straight-up? What if Anthony Holder is the nominee?

Simon said...

"But, really, does it matter what the Constitution means? (Especially now that Scalia is dead. It can mean whatever we need it to mean now. The bulwark is gone. Let creativity run wild.)"

Which of course is exactly the problem.

Lookit: This needs to have a sobering effect on the race. Reality is, it's now Trump or Cruz. I haven't been a Cruz supporter, I don't have a dog in the race any more, but looking realistically at the race, looking at how things have shaken out, there are only two possible outcomes: Cruz is nominated or Trump is. And, moreover, there are only two possible routes from here to the decision: Either every other candidate drops out now and gets behind Cruz to stop Trump, or we're going into the convention with a brokered convention in which there's a real chance that Trump prevails. (You think Trump wouldn't cut a deal with Bush? You're wrong.)

If we don't get serious, right now if the no-hoper candidates don't take one for the team and get out now, the race will becomes a four-way clusterfuck and we will limp into the convention with Trump, Cruz, and Rubio each at ~30%, and Jeb (who has the money to fight on and lacks not only the shame to see what a joke his candidacy is but also the courage to end it) at ~10%. Rubio and Jeb are fighting over the same plurality of voters, so the moderate/mainstream vote will continue to split between them; neither can win, neither can be a serious contender while the other one stays in, the and neither will fall on their sword for the good of their faction or their party. It's stupid and self-indulgent for them to continue a fight that they can't win at the risk of handing the party to a populist insurgency.

This isn't a game. This has always been about replacing justices in the abstract, but now there's the finest imaginable point on it: This is about replacing THE justice, one of the two most important American judges since at least Holmes, perhaps since Marshall. "He IS the box," Althouse once quipped. We're talking about replacing Antonin Scalia, and that is NOT a ball that we can drop. You dishonor the man and everything he did if you don't take this seriously.

So my message to the candidates who aren't Cruz or Trump is simple: It's over, you're done. You gave it a try, it wasn't your year, and there's no dishonor in that; but it didn't work out. Drop out now—not after SoCal, not after Super Tuesday, right now—and endorse Cruz. That's it. History will forget everything you have ever done and judge you on this one point: You either helped stop Trump or you helped hand him the nomination.

(Let me give a message to the Senators, by the way: Roger Taney served on the Supreme Court for 28 years, and history is pleased to forget every case but one and judge him on one mistake, Scott v. Sandford. History will judge your entire career, no matter how long or storied, on one thing: Did you stop Barack Obama from replacing Antonin Scalia?)

In fine, again: This isn't a game. Anyone who thought it was should have been disabused of that notion yesterday. At this point, you're explicitly for Cruz or you're effectively for Trump. Make your choice.

MaxedOutMama said...

After genuine sorrow - which surprised me - my first reaction to the news was to think of Venezuela's current situation.

The High Court in Venezuela was largely a Chavez/Maduro creation. Since a legislature was elected that opposes Maduro, the Venezuelan "Supreme Tribunal of Justice" has progressively ruled in ways that operated to overturn that election.
http://www.bbc.com/news/world-latin-america-35287291

The most recent basically grants Maduro a temporary dictatorship:
http://www.theguardian.com/world/2016/feb/12/venezuela-under-economic-emergency-as-court-gives-maduro-decree-powers

Given how incredibly well things are going in Venezuela, both the left and right poles in the USA might want to moderate their positions and stay within the bounds of normal procedure.

I think the US side that goes nutso over this does itself real damage. So far, perusing a site like DU makes me think it is going to be the Dems.

But Congress should consider Obama's proposed nominee. They should advise him, and he should seek their consent. Both sides should attempt to make it work. The voters have split control between the parties, and both parties need to recognize that and work within the voter-given priorities.

Hagar said...

Obama being Obama, I agree with Powerline that he will make the nomination he calculates will give the Democrats the most mileage for the election in November.
Actually filling the position will be a distant second motivation.

james conrad said...

This is all BS, no way Obama picks this justice, not gonna happen, end of story.

rhhardin said...

They're articles about how voters behave. What will the idiots do.

Nothing serious is brought forward for them to consider except things that matter to idiots.

They're on their own.

Mark said...

If Obama is not blocked from appointing the next justice, it will mean the death of the Constitution, the rule of law, and any number of traditional institutions regardless of who is elected president.

rhhardin said...

Harriet Miers is available.

Mark said...

It bears mentioning that when a seat formally held by a "liberal" has come open during a Republican administration, the Dems demand that the president pick someone who will maintain the ideological balance on the Court. Of course, when the reverse in play, when it is a Dem president, it's "heads we win, tails you lose."

Mark said...

It also bears mentioning that in a healthy constitutional republic, one person in one office is not a matter of life or death for the nation and society.

That the members of the Court should basically take on the status of being gods decreeing from on high is why we long ago ceased to be a truly free people.

William said...

My guess is Obama will appoint a Muslim justice that is sympathetic to sharia. Nest step will be for hamtramick michigan to vote to adopt sharia and for the appeal regarding its' constitutionality to be affirmed under the 1st amendment as a free exercise of religion.

MaxedOutMama said...

Note - what I was trying to express with my earlier comment was my perception that both Sanders' and Trump's candidacies were spawned by voter distrust, and the party insiders that want to prevail over the next election campaigns had better make it clear to the voters that their choices matter, and that the leadership of their party takes voter preferences seriously.

buwaya puti said...

This is the major issue in the election now;
Given the way this year is going, and all the consequences of current events that have not quite hit yet, it won't be the major issue for long.

Mark said...

Trump has already praised many times Larry Tribe. One of those on-the-left Living Constitution types. If allowed, Trump would appoint a justice who is buddies with the Ginsburg-Breyer-Kagan-Sotomayor left wing.

pm317 said...

so he can perhaps absorb the heat, and he has an opportunity to pick someone that will be very damaging for the other party to attack

As he is wont to do. He is wily that way. Sri Srinivasan is the name being thrown into the mix. Attacking minorities -- not a good thing for the Repubs in an election year.

David Begley said...

I'll take Mitch at his word: no vote will be scheduled. Grassley shouldn't even give the nominee a hearing. Let the people help pick SCOTUS via the November vote.

Obama will be his usual political and divisive self. I expect a nominee who is completely unconfirmable just to whip up the Dem base. There is a black and gay federal district court judge in FL. Someone like him. Back to Blood. Identity politics.

pm317 said...

For people who don't know about Indian origin names, Sri Srinivasan is not Muslim. It is Hindu, from South India and mostly Tamil.

pm317 said...

@William, there is a woman Muslim judge appointed in the recent times who was sworn in suing Koran.. Goog says so.

pm317 said...

Oh, google says there is another: "federal judge Abdul Kallon, who was appointed to an Alabama district court in 2009"..

Michael said...

The president has the right and the power to recommend a candidate. Not to appoint a candidate. These things take time. The clock could well run out.

garage mahal said...

Fulfilling duties as per the Constitution is so decisive.

mccullough said...

Scalia's most famous opinion with the public is Heller, recognizing the right of a lawful individual to own a firearm for self protection. This right is popular with a majority of the public and Obama's appointee Sotomayor is against it.

So GOP can stay away from any social issue and just say we aren't confirming any Justice who is going to overturn this right. Remind everyone of Obama's bitter clinger comment and appointment of anti- 2d Amendment justices and say unless Obama's nominee swears on a stack of bibles to uphold Heller and also personally owns a firearm, the GOP is going to vote no.

pm317 said...

Nobody is pulling my chain here. My comment was informational, tongue in cheek for people who may jump to conclusion about his name.
{First rule of blogging: Don't respond if you don't understand the comment}

buwaya puti said...

"Jig" is a dance.
A general European dance, best known in recent times in an Irish form.
There is a very similar thing among my Basque ancestors.
If students don't know this, they are ignorant, and if they get annoyed by the use of this they don't belong in a law school, lacking intelligence and judgement.

pm317 said...

oh goody, the offender disappears.. just like that. More power to the hand behind the curtains..

Bruce Hayden said...

I don't think that Obama is dumb enough to nominate a Muslim. It is too obvious to too many people that they are being privileged and coddled by him. And, are behind a lot of terrorism around the world. I think better odds is a black woman, likely Protestant (Baptist), since there were no Protestants on the Court in a majority Protestant country (6 RC and 3 Jews). Someone suggested AG Lynch, but she is so compromised that I just don't see it. If she is the nominee, I wouldn't be surprised if they held hearings just to grill her on the scandals that she has protected, like the IRS scandal, and, by then, maybe even Hillary's emails and public corruption (she is apparently a Hillary contributor in the past). Still, that would be quite fun, with such a nomination hanging over her head as she decides whether or not to indict Hillary. She could be put in a position of trading the Presidency to the Republicans for a Supreme Court seat (along with the Republicans in the Senate).

Big Mike said...

Obama has a right to nominate someone, and the Senate has the right to reject, for any reason or none at all. Justice Bork agrees.*

_________________________
* Yes, I'm aware he's deceased.

chickelit said...

Mark said...Trump has already praised many times Larry Tribe. One of those on-the-left Living Constitution types. If allowed, Trump would appoint a justice who is buddies with the Ginsburg-Breyer-Kagan-Sotomayor left wing.

LOL. Why not his own sister in your fevered fantasies?

grimson said...

Michael K said...
McConnell should have kept his mouth shut or just said, "We will give any nominee deliberate consideration."

I basically agree, but he may have done this to preempt any charges that Republicans are opposed to Obama's nominee for any various specious reasons (race, sex, religion).

Or, he could have said that Republicans campaigned in the last election to block Obama, and they need to fulfill that promise to the voters.

Or, this could also be just more failure theatre

chickelit said...

Peggy Noonan once remarked "I do like the cut of that man's jig"

Or that man's jib. Or jeb. I forget.

harrogate said...

It's ridiculous for these GOP Senators to refuse to confirm any appointee Obama puts forward , and argue that he shouldn't be able to appoint anyone . Just because they hate him and his politics. Just go back and read their arguments about W when he was poised to make his appointments .

Bruce Hayden said...

Imagine the Master of the Deal coming into the convention essentially tied with Cruz. This seat could possibly be the one thing that Trump could trade to Cruz. And, Cruz is the one guy running, or, really in the Senate, who would be highly qualified for sitting on the Supreme Court. Princeton undergrad (where he was a champion debater), top of his class at Harvard LS, clerked for the CJ, good won/loss as an advocate before the Court. Etc. Actually, there are very few in the country as qualified as he, and most of them are probably Dems. Of course, the problem is that Cruz may not make it through the nomination process, given his relationship with the rest of the Senate, and even the rest of the Republicans (and, there is a good chance that the Senate in the next Congress will have a Dem majority, and be run by the execrable Chuckie Shumer). Still, I think that a lot of people probably think that Cruz belongs on the Supreme Court, over being President.

Anglelyne said...

Birches: It must be so nice to live in the Coastal Media Elite Bubble. I bet Cassidy doesn't know anyone who disagrees with him.

No, he probably doesn't, but like all his kind he intuits that the dark marches beyond the castle walls abound with stooped, grunting, slobbering monsters who do.

If people like Cassidy really thought everyone agreed with them, they would not be so sedulous in their concern-trolling.

Bruce Hayden said...

No real reason that the Republicans couldn't just sit on any Supreme Court nomination that Obama might send them. None. This happens quite regularly for appeals court judges in the 4th year of a Presidency, and in particular, in the 8th year, esp. when the President and Senate are controlled by different parties. My understanding is that the Republicans are already doing this, just as the Democrats did in 2008. Or, they could just vote the nomination down - but there are enough squishy Republicans right now in the Senate who might just vote for whomever, or whatever, the President nominates. So, better no hearings, JIC. Unless, as I pointed out above, the nominee is AG Lynch.

The Cracker Emcee said...

Way too inside baseball. No one but partisans care and their votes have long since been decided. At this stage I doubt very much any LIV's/moderates will care if the Senate gives Obama the middle finger again. Indeed, as someone noted above, invoking Heller may bring out the conservative voters who sat out 2012. And Hillary is boxed into defending Obama's choice, which is fine for the primaries but may get awkward in the general. I don't see any scenario where this becomes an electoral opportunity for the Donks if the GOP Senate stays firm.

Of course, the Donks would desperately love this election to be about the SC instead of, say, immigration or Muzzie extremism. That's what all the chatter is really about. But I see no way the voting horse can be made to drink from this particular watering hole.

harrogate said...

Obama should go ahead and do his nomination soon. Surely he already has his short list together , as all Presidents do . No point in dragging it out : just make your nomination and see how the GOP Senate responds .

Michael K said...

"It's ridiculous for these GOP Senators to refuse to confirm any appointee Obama puts forward "

Yes, just as it was ridiculous for the Democrats to filibuster Bush's nomination of Miguel Estrada for the DC Circuit. They were afraid he could be the first Latino USSC justice and they filibustered the nomination.He was one of the most qualified nominees ever and far more qualified than idiot "Wise Latina."

harrogate said...

Bush's record on confirmations was not perfect but it was pretty damn high compared to Obama.

What we have here is people saying , "this man shouldn't get to make any appointments ." And that's their position ! How can you abide this as a formal position ? He was duly elected and thus has a duty to make these appointments .

cubanbob said...

harrogate said...
It's ridiculous for these GOP Senators to refuse to confirm any appointee Obama puts forward , and argue that he shouldn't be able to appoint anyone . Just because they hate him and his politics. Just go back and read their arguments about W when he was poised to make his appointments .

2/14/16, 11:07 AM"

Obama can nominate whoever he wants, he just can't appoint however he wants. You do understand the distinction? Now if Obama wants to fill the seat while he is still president he can nominate someone acceptable to majority of the Senate. Or he can nominate some leftist and have the nominee Borked. More interesting is whether or not CJ Roberts will delay new cases and cases as yet not decided until there is a new justice sworn in. McConnell in the meantime better declare the Senate is in session to avoid a recess appointment.

rcocean said...

"I'll take Mitch at his word: no vote will be scheduled. Grassley shouldn't even give the nominee a hearing. Let the people help pick SCOTUS via the November vote."

I don't take Mitch at his word. He needs to watched like a hawk. The same goes for McCrazy and Grahame who are always looking for a pat on the back from the WaPo and the Nyt.

However, the Billionaire donors don't seem to care, so maybe McConnell will actually act like a Republican in this.

rcocean said...

And its just absurd for the Democrats and Hillary to talk about what the Constitution requires. They've proven in the past, again and again, that nothing matters to them except winning.

Expect them to try every dirty trick in the book, to get that 5th Scotus seat.

MikeR said...

"Why not ask Will the Democratic Response to Antonin Scalia’s Death Hand the Election to the GOP?" The questions are not evenly balanced. Certainly the Democrats could botch the job. But Scalia's death is a serious loss to the GOP, and other things being equal, the GOP is the one that is going to have to pay to recover from it.

harrogate said...

Yes Cubanbob I understand the difference and you're right in theory . But it's pretty clear they're intending not even to consider anyone he puts forward because it's him doing it . That's how much they hate him -- to hell with process , they are saying , in light of how very much we hate this man .

who-knew said...

"But, really, does it matter what the Constitution means? (Especially now that Scalia is dead. It can mean whatever we need it to mean now. The bulwark is gone. Let creativity run wild.)"

Probably meant as sarcasm, but unfortunately for our late great constitutional republic, 100% true.

Mazo Jeff said...

If my memory serves me correct, I recall the Madison Libs saying Gov Walker should not have appointed Rebecca Bradley to fill the interim vacancy on the death of Justice Crooks. I recall them saying let the people decide in the upcoming election! Amazing about karma!!.

Does anyone know Obama's voting record on Supreme Court nominations while a US Senator??

Achilles said...

The Republic is already on the brink of becoming a tyrannical democracy where the minority imposes it's will on the minority. If Obama puts the 5th prog on the court we will be Venezuela in 10 years.

Most of the progs that want Obama to do this are too stupid to figure out they will be the poor agitated masses that don't have any money.

I will be an expat. I am already tired of supporting all of you parasites. I will be just fine without you. It will be fun to watch you wonder why there is no toilet paper in the supermarket after we leave.

cubanbob said...

harrogate said...
Bush's record on confirmations was not perfect but it was pretty damn high compared to Obama.

What we have here is people saying , "this man shouldn't get to make any appointments ." And that's their position ! How can you abide this as a formal position ? He was duly elected and thus has a duty to make these appointments .

2/14/16, 11:36 AM

The Senators were also duly elected.

Theranter said...

Mark said "Trump has already praised many times Larry Tribe. One of those on-the-left Living Constitution types. If allowed, Trump would appoint a justice who is buddies with the Ginsburg-Breyer-Kagan-Sotomayor left wing."

Trump mentioned Sykes last night. Hardly a "buddy" of the left wing gang of justices you mention. And damn smarter than any of them. I think he'd consider Rogers Brown as well, a brilliant jurist. (Senator Obama tried to block her DC COA appointment.)

And Trump wasn't "praising" Tribe (recently anyhow), he mentioned him when referring to the question of Cruz's eligibility. He might even be friends with Tribe, I don't know, but that's a helluva stretch to a SCOTUS nom.

MikeR said...

By the way, I didn't see an explanation of this, so I'll ask: what will happen to the cases currently in front of the Supreme Court? Can some of them still be decided including Scalia (say they wrote it already or something)? Does this shift all the odds on things like affirmative action and Friedrichs vs. CA Teachers' Assoc?
Whoa - I see that Kagan already recused herself from Fisher, so it would be 4-3 anyhow?

Mazo Jeff said...

What if he nominates Bill Clinton!!

What a country! You can grow up in a small Ark. town with "Hope", become a lawyer, Governor, President, defrocked lawyer, impeached President, Supreme Court Judge and 1st "Lady". All in one lifetime!!! WHAT A COUNTRY!!

garage mahal said...

Now if Obama wants to fill the seat while he is still president he can nominate someone acceptable to majority of the Senate.

Except McConnell and Republicans have already said they won't consider any nomination.

steve uhr said...

I think "advice and consent" means that you will in good faith consider all nominees. Saying up front that no one will be confirmed doesn't cut it. Were I Obama I would nominate a slightly left of center -- in terms of judicial philosophy--court of appeals judge appointed by a republican. But that will never happen.

SteveR said...

The main thing is, that regardless of what is said, the media will characterize it is ways favorable to the democrats.

Birkel said...

harrogate:

You mean when conservatives argued vociferously against Harriet Meier? (Spelling?)

No, you mean nothing but sound and fury.

SteveR said...

Except McConnell and Republicans have already said they won't consider any nomination.

Tell me garage, do you really think there is any chance that Obama would nominate someone acceptable to republicans?

John Henry said...

And Obama couldn't even be bothered to put on a necktie when he came out to speak about Scalia.

Shame on him.

https://pajamasmed.hs.llnwd.net/e1/claudiarosett/user-content/9/files/2016/02/Screen-Shot-2016-02-13-at-9.23.53-PM.sized-770x415xc.jpg

John Henry

Mac McConnell said...

Any Republican voting to allow a Obama court appointee to move forward will find that their political career is over. If an Obama appointee somehow makes it to the court the Republican Party is history. The Republicans owe Obama nothing, turnabout is fair play.

harrogate said...

What steve uhr suggests is prolly what Obama will do .

Mac McConnell said...

Did Senator Obama ever vote to filibuster a Republican court appointee?

garage mahal said...

Tell me garage, do you really think there is any chance that Obama would nominate someone acceptable to republicans?

Sri Srinivasan? The Senate has already confirmed 97-0 min 2013.

Freder Frederson said...

It will be hard to say his seat should be filled by someone unlike him.

Why? That is a very easy thing to say. The seat should be filled by someone unlike him. There I said it.

Marshall and Brennan were replaced by much more conservative Justices. I don't remember anyone saying that Bush should appoint somebody as liberal as them.

harrogate said...

Sri would be a solid choice indeed . Hard to go from no votes against to refusing to move on him , while protecting the pretense they are actually doing their jobs . Still though , they'll try .

Mark said...

Mazo Jeff completely ignoring the fact that WI state supreme court justices are elected, and that is the election people suggested waiting for.

If we elected a Supreme Court Justice and the normally occurring election for Scalias seat was November you would have a comparable example.

Thanks for deliberately misunderstanding reality to score a cheap political point. Try better next time.y

Birkel said...

steve uhr:

Your "advise and consent" reference runs headlong into Justices Bork and Thomas.

We are following the Colin Powell rule: Dems broke the process and now they own it.

Simon said...

harrogate said...
"What we have here is people saying, 'this man shouldn't get to make any appointments.' And that's their position ! How can you abide this as a formal position ? He was duly elected and thus has a duty to make these appointments."

He has a prerogative to send a nomination to the Senate. Let him send it; it's a free country.

Chuck said...

Here's a weird question for you, Professor Althouse...

What if Justice Ginsburg announces her retirement at the end of this term? She's 82. A cancer survivor. Her husband has died; now so has her best social friend on the Court. She's fallen asleep during the State of the Union address, and during oral arguments at the Supreme Court.

What if Obama had not one but two picks for SCOTUS nominees? How would that change the calculus? Is there some way that might be used to the Dems' advantage?

buwaya puti said...

See Instapundit.
As per Foley Obama can make a recess appointment, and the Senate can't end recess prior to Feb 22 without the approval of Reid.

Big Mike said...

@Mazo Jeff, I thought Clinton was forced to turn in his law license. I think nominating a non-lawyer would be a non-starter.

Simon said...

garage mahal said...
"Sri Srinivasan? The Senate has already confirmed 97-0 min 2013."

To a court of appeals. Not to the Supreme Court. Your argument is like saying that obviously no one could oppose Governor Perry becoming President of the United States because Texas has already elected him. Maybe I would have voted to confirm him to a district court, maybe to a court of appeals, but the Supreme Court is different.

John Henry said...

Are there any good transexual candidates available?

We need more crazy on the court.

If Bruce Jenner can identify as a woman with a penis, perhaps he can identify as a Supreme Court Justice. He has all the Constitutional qualifications as I understand it.

He is also not a Yale or Harvard graduate.

John Henry

eric said...

If anyone thinks the Republican Senators are going to be able to stop an Obama judicial nominee, I suggest you haven't been paying attention. The Republicans are going to cave. It's that simple. That's what they do. They talk tough and then they run like cowards because someone at the New York Times says they will lose big in the next election for talking tough.

I think the advantage here goes to Trump and Cruz. Cruz because he will show he is a fighter who will fight tooth and nail to keep any Obama appointee off the court.

Trump wins here because he has shown he isn't a part of the problem. The problem being the constant retreat of the Republican party, always in fear of the Althouse criticism that they will overplay their hand.

So, the Democrats will overplay their hand and they will win.

And that'll give us Trump or Cruz.

As for Trumps SCOTUS appointments, he has told Sean Hannity he will appoint justices like Thomas and Scalia. I find that to be reassuring, but I trust Cruz more on the issue.

eric said...

Blogger harrogate said...
Sri would be a solid choice indeed . Hard to go from no votes against to refusing to move on him , while protecting the pretense they are actually doing their jobs . Still though , they'll try .


I hope you're right. But I want them to do more than try. I want them to succeed.

But given their track record, I suspect failure.

Mac McConnell said...


"As for Trumps SCOTUS appointments, he has told Sean Hannity he will appoint justices like Thomas and Scalia."

Except when Trump disagrees with Scalia and Thomas, which has almost always in the past. Trump isn't a conservative or right of center candidate, he's a soft liberal. He'll say anything like all populist, like Bernie, even though the his statements are contradictory and defy logic.

jr565 said...

Repubs can't tell Obama he can't nominate someone. But they don't have to confirm the nominee. And Obama basically voted, as a senator, to block Alito's confirmation through filibuster. So, did Hillary Clinton.
Which would prevent Alito from even getting an up/down vote. No dems were denouncing obama at the time. It was simply congress using a procedure to try to block a nomninee. But when it might be used by a republican THEN it suddenly becomes a problem.

Also, lets think back to Kennedy's appointment. He was actually Reagan's 3rd choice. We all remember Robert Bork or at least know about his confirmation process. Was he ever nominated? Oh, so the dems refused to vote for him? Interesting.

By the time Kennedy was finally nominated the seat was vacant for a year. So then, dems are ok with there being a vacant seat on the SC and the world didnt end. AND they are ok with forcing the president to not have his extremist choice but make him submit a moderate.
Well, then repubs can do the same.
Obama can nominate who he wants. Repubs can then sit on the nomination, or drag it out and ultimately reject it. Biding their time until the next presidetn comes into office.
Obama could throw a curve ball and put forth a moderate conservative choice and then repubs have to weight whether they still want to stick with their choice to block.
Charles cooke of NRO already clarified the argument to say, IF Obama submitted a suitable choice, Republicans would probably go along with confirmation.
THey just don't believe Obama would do that.

bbkingfish said...

In times of crisis the GOP shows its true colors.

Gov. Abbott and Mitch McConnell couldn't wait until Scalia's body was cold to go political on his replacement. They made it pretty obvious that they cared not one whit for Scalia the human being, much less his family. To these politicos, Nino might as well have been made of wax...he was nothing more than a symbol. Then all the candidates for Prez went onstage and spent two hours trying to out-do one another in reinforcing the impression.

Yesterday was a bad 24 hours for the Republicans. Scalia's dead, and it's starting to look like the "conservatives" are going to get Jeb Bush shoved down their throats at the convention. The next six months are going to be interesting times for GOPers.

Sebastian said...

"Will the G.O.P. Response to Antonin Scalia’s Death Hand the Election to the Democrats?" Asks John Cassidy at The New Yorker, and you might wonder why the question doesn't work the other way too: Why not ask Will the Democratic Response to Antonin Scalia’s Death Hand the Election to the GOP? . . . The way I asked the questions yesterday was: Will liberals overreach and show too much of a raging desire to control the Court and make it solidly liberal at long last, touching off a reaction among conservatives? Or will conservatives flare up . . ." Yours truly doesn't "wonder." As he said so presciently (clears throat) yesterday, and as the NY piece already illustrates, it's not about who overreaches, but who gets framed as overreaching, and such framing/blaming only works one way.

Bob said...

There's little doubt that Obama will nominate a hard leftist who is anti-gun. What is speculation is whether he will nominate a Muslim just as a way of giving the middle finger to his political enemies. He's shown a pronounced inclination to do that since his re-election.

cubanbob said...

harrogate said...
Yes Cubanbob I understand the difference and you're right in theory . But it's pretty clear they're intending not even to consider anyone he puts forward because it's him doing it . That's how much they hate him -- to hell with process , they are saying , in light of how very much we hate this man .

2/14/16, 11:55 AM"

What is your point? That the Republicans hate Obama? And? I'm old enough to remember Bork. Is Obama hatred by the right any worse than Reagan or W hatred by the left? Let's keep the situational outrage down to a minimum. As for the Senate Republicans you are right, they won't and don't have to consider any nomination by Obama that isn't to their liking, no different than that of a Democrat controlled Senate in confirming a Republican court nomination. Now if Obama wants a sure fire nomination and immediate confirmation and get a Republican nominee for president that is more likely to get along with Democrats if he should win the election, then Obama ought to nominate Ted Cruz to the court and if Donald Trump wins the election he will make all kinds of deals with the Democrats (especially if the Democrats regain the Senate). Is Obama that clever? I doubt it. Obama is too ideological to nominate anyone who he doesn't consider to be reliably progressive. As for a recess appointment, if Obama can recess appoint then the House could vote to impeach and with the Senate dragging it out the trial could be delayed until next January when the recess term is done.

Tom said...

Can Obama just make a recess appointment?

gilbar said...

"the Senate, which must confirm"
I heard Bernie say something very similar on Fox Sunday
"The Constitution is pretty clear. The president makes the appointment, Senate confirms, let's get on with that business."

That (according to the Dems) is The Role of Congress: the "Senate Confirms"
Not advise, not debate, not vote; just and Only Confirmation.
Let's get on with that business of shredding last the vestige of constitutionality. Senate as Rubber Stamp for Ceasar; just like in Rome

Bruce Hayden said...

I think that a recess appointment is possible. I just don't panic over it. We are talking about maybe 11 months, and it would potentially reduce the pressure to seat a permanent Justice.

n.n said...

Thomas is the invisible man.

That said, the pro-choice cult is the established church. People will vote for the orthodoxy if only to go along to get along. So, we will have abortion rites, selective exclusion, womb banks and sperm depositors, clinical cannibalism, anti-native policies, class diversity, progressive warfare, and voter welfare.

Zach said...

I think the strategy here is "a quiet answer turneth away wrath."

The Republican goal is straightforward, and they already have the power to achieve it -- no nominees until after the election. The Democrats can try to turn up the heat, but that means a specific nominee with specific problems. They can dial up the rhetoric, but that just makes the nominee sound more extreme.

A recess appointment who is the liberal version of Anthony Kennedy would be an interesting tactic, since they would only be there for a little while and might not be worth a big fight. Not gonna happen though -- recess appointments are already a hot button issue, and the people who want to fight about nominations are rarin' to go.

machine said...

"...maintaining scrupulous dignity and veneration of constitutional principle"


hilarious.

MayBee said...

It is hilarious to watch Democrats try to act like this is all just good Constitutional requirement.

When we all know- even Democrats know- they would never have let a Feb 2008 Bush nomination on to the Supreme Court if Ginsberg had died.

Don't pretend.

Char Char Binks said...

Will the disgraceful things the Republicans haven't done yet, but, within the bounds of possibility, COULD DO, show how truly reprehensible they really are in John Cassidy'simagination?

MayBee said...

Yes Cubanbob I understand the difference and you're right in theory . But it's pretty clear they're intending not even to consider anyone he puts forward because it's him doing it .

No, it has nothing to do with hating Obama. It's because they are Republicans, he's a Democrat, it will change the makeup of the court, and an election is just 8.5 months away, when there may be a Republican president.
It's huge.

Marc Puckett said...

Lyle Denniston at Scotusblog on the recess appointment business; who knows.

buwaya puti said...

Bbkingfish, it is necessary to deal with the consequences of this now. This is not a situation where one can take time off out of sentimentality. It is as if a general on campaign has died; the pressing matter is the campaign, the matters of great moment, the lives at stake, not the mourning.
In this case the stakes are enormous - just the EPA coal decision last week directly affected thousands of jobs and electric rates across the country, with economic effects affecting many thousands more jobs. And that's just one decision. In that case, being in the majority, he saved tens of thousands of jobs and probably hundreds of lives, people who would have despaired and died of misery, families broken out of economic stress, pensioners impoverished.
People in Scalias position make decision that are life and death to masses of people.

Amanda said...

"Will the G.O.P. Response to Antonin Scalia’s Death Hand the Election to the Democrats?"

Yes, this and much more.

Titus said...

It would nice to have a gay man on the court.

tits.

McGehee said...

Seems to me the burden could be placed on Democrats to show why holding off until 2017 is such a disadvantage to their professed vision of constitutional jurisprudence.

The answer, I think obviously, is that they don't expect to win in November. If they were sure they would, they would behave less desperately.

Rick said...

will conservatives flare up with hostility to women's rights and gay rights and affirmative action and all the many issues that make them look too mean and ugly?

Why would opposition to race preferences make them look "mean and ugly"? Your beliefs are not shared by Americans.


In U.S., Most Reject Considering Race in College Admissions

by Jeffrey M. Jones
Sixty-seven percent say decisions should be based solely on merit

PRINCETON, NJ -- Two-thirds of Americans believe college applicants should be admitted solely based on merit, even if that results in few minorities being admitted, while 28% believe an applicant's racial and ethnic background should be taken into account to promote diversity on college campuses. Three-quarters of whites and 59% of Hispanics believe applicants should be judged only on merit, while blacks are divided in their views.

Earnest Prole said...

If there’s anything we’ve learned in the past few years, it’s that consent is not consent unless it’s a strong, enthusiastic “yes.” Senate Republicans may therefore advise the president which Supreme Court nominees they will enthusiastically say yes to, and say no to everyone else. Surely Mr. Obama knows that no means no — it says so in the Constitution.

Tim Fening said...

Because I've been watching Netflix' "House of Cards", I would immediately inquire on exactly how Scalia died. How convenient to "suddenly" pass away from "natural causes" while on a remote hunting ranch.

But I'm watching "House of Cards".

Tim Fening said...

Following the confirmation of a "wise Latina", how about a "fair-minded Iranian"?

Rick said...

harrogate said...
Yes Cubanbob I understand the difference and you're right in theory . But it's pretty clear they're intending not even to consider anyone he puts forward because it's him doing it . That's how much they hate him -- to hell with process , they are saying , in light of how very much we hate this man .


Is this the new Democratic Directive? To repeat "hate" as many times as possible in the crazy wish that doing so makes it true?

Anglelyne said...

Rick: Why would opposition to race preferences make them look "mean and ugly"?

It is in the nature of spoiled children and sociopaths that they perceive opposition to their will as ipso facto an injustice. You're just now noticing these defining attributes of progressive thinking?

Tim Fening said...

While I'm in the mood to post thoughts, here's another one. Maybe someone above has already thought of it. If a Republican wins the POTUS, that person might have at least two SCOTUS picks, forget about Scalia for the moment. Talk about a big opportunity. Maybe the libs know this.

DavidD said...

"Obama doesn't face reelection, so he can perhaps absorb the heat, and he has an opportunity to pick someone that will be very damaging for the other party to attack. I'm sure he's working on an exquisitely strategy."

Michelle Obama.

Douglas said...

If the GOP caves and confirms whoever Obama nominates, I can safely predict that millions of GOP voters will punish the GOP by staying home in November. This is a big deal and it's one of the few things that control of the Senate ought to give the GOP and if the Senate leadership can't figure that out, all of them, and whoever the GOP nominates for president, deserve to lose the election.

HoodlumDoodlum said...

"I'd rather stay home than vote for Mitt Romney."
Thanks, 2012 electorate.

Crazy Jane said...

Love him or hate him, Scalia was a serious man and a distinguished jurist. (He and his wife were great friends of Ruth Bader Ginsburg and her late husband, BTW. Not everybody in this country is all politics all the damn time, thank goodness.)

No new justice will be proposed before business resumes on Tuesday. I don't see why Trump had to weigh in on replacing Scalia within hours of the announcement of his death. I also think it was unseemly of Obama to let us know immediately that he plans to replace Scalia before he (Obama) leaves office.

Can't we just honor the dead for a day or so? Have we lost all sense of respect and decorum?

Unknown said...

---Remember Robert Bork? Then Anthony Kennedy? Then Clarence Thomas? Nobody is more skilled at fucking with the nomination process then the Democrats on the Senate Judiciary Committee.

How could we forget? Its good to know you relish such blood sport. What makes you think that we can’t return in kind and turn the Senate into a even greater stinking mess than it already is?

Unknown said...

----Attacking minorities -- not a good thing for the Repubs in an election year.


Remember when the left made fun of Bobby Jindal and Nicky Haley? Good times.. good times.

Rhythm and Balls said...

We shall mourn the man, and burn the tyrant!

William Chadwick said...

Il Dufe will no doubt appoint another Constitution-killer to the Court, while the GOP will manage to blow the presidential election, giving us either the Alinksyite Witch or the crazy socialist grandpa as Obama's successor. What's left of the republic is doomed, folks . . . while servile State-fellators like garage mahal and Robert Cook beat the drums as we march down the Road to Serfdom. My only advice: buy gold, and buy guns. While they're still legal.

I Callahan said...

Just because they hate him and his politics.

Harrogate, do you believe this? Really? Do you mean to say that there couldn't possibly be a good reason to oppose any of Obama's nominees?

I really want to know.

Richard Forty said...

Obama has every right to propose a nominee, the repub senate has every right to reject that nominee, and should. The only way I would support not rejecting the Obama nominee is if he nominates somebody as conservative as Scalia or Alito. I would almost prefer that Obama propose a recess appointee, especially if they were moderate, since that appointee would only last till next term, when as long as a repub wins, they can replace them with a conservative nominee, who could reverse any damage the Obama recess appointee did.