So much to say, so little time. A few random thoughts on this 9.9 on the politico-judicial earthquake scale.
- For decades, the Court has had five basically conservative Justices and four basically liberal ones. The replacement of Justice Scalia by a Democratic president has the potential to dramatically shift the Court’s center of gravity to the left – even if the eventual nominee is not him- or herself a liberal firebrand. For that reason, I think for Obama to nominate a liberal firebrand would be a tactical error. Such a person would not be confirmed before the election, and risks giving the nomination to a Republican president. Better to nominate someone who is at least somewhat acceptable to some Republicans, and try to work a deal.
- The stakes could hardly be higher for the President and the Senate, and for the Senate to block any nominee from President Obama (as Majority Leader Mitch McConnell suggested he would today) is an exceedingly risky gamble. They have to be aware that the chances of a Republican taking over the White House are probably a good deal less than 50%, and control of the Senate itself is in play this year. The nightmare scenario for McConnell et al. is to block a moderate nomination from Obama; lose both the White House and the Senate; and then see President Clinton or Sanders succeed in placing an actual liberal on the Court. And that scenario is perfectly plausible if the GOP chooses simply to obstruct.
- If Scalia’s replacement goes to the next President, then the Court will be shorthanded for, most likely, well over a year. That is a very difficult and undesirable situation because of the many high-profile cases that are decided 5-4. It’s doable – as noted below, the Court has ways of disposing of cases where the vote is tied – but it’s a mess, and the other branches should do what they can to avoid it.
- The timing of Justice Scalia’s death is especially disruptive to the work of the Court. For a Justice to die in office is rare, and (by coincidence) the last two times it happened (Rehnquist in 2005, Jackson in 1954), the deaths occurred at a time in the Court’s calendar when there were few, if any, argued cases pending. Today, however, the Court is mid-term, with many already-argued cases under consideration but not yet decided, including some important ones that may well have been 5-4 for the conservatives (the most likely candidate for that distinction is Friedrichs v. Cal. Teachers Association, the case that threatened to undo public sector unions). If the loss of Justice Scalia’s vote (an opinion can no longer issue that includes his vote) means those cases are now tied 4-4, the Court has two options: order that the case be reargued next term, or issue an order that the lower court’s ruling is “affirmed by an equally divided Court.” Such an order has no precedential value; it simply leaves the lower court’s ruling in effect, whatever it was.
- One of Justice Scalia’s last official acts was to cast one of the five votes needed to suspend President Obama’s Clean Power Plan from going into effect until litigation surrounding its legality is settled (the four liberal Justices dissented). If the vote for that order had been 4-4, the stay would not have been issued.
Please share widely!
He actully has the power to make a recess appointment. Eisenhower did it 3 times – Potter Stewart, William Brennan, and controversial Earl Warren. McConnell’s threats provide coverage for such an action.
The recess appointment option is greatly complicated by (ironically) the Supreme Court’s recent decision in the NLRB v. Noel Canning case. Basically, the Senate can prevent a recess appointment simply by holding a pro forma session once every three days. Some more info here.
Thank you for an informed commentary that is better than any on the NYT at this moment.
Obama should, and will, nominate a candidate for the Supreme Court, and will probably do so fairly quickly. I expect that the nominee with be far from a “liberal firebrand,” not only because I’m not sure who would qualify as such a person, but because of the tactical problems of such a choice and that Obama is philosophically unlikely to do so.
But, regardless of the nominee’s ideology, I’m not sure how McConnell blocking any nominee would be an “exceedingly risky gamble.” Really? In fact, agreeing to negotiate with Obama at all would be the “exceedingly risky gamble.” It’s pretty clear that any Republican who gave Obama the room to destroy what it has taken legal conservatives decades to create would be crushed in an instant. I can’t imagine any of them would budge on any plausible nominee of Obama’s.
We on the liberal side of things will call for the Senate to act on Obama’s nominees and say it is the Senate’s constitutional responsibility to act, blah, blah, blah. But the fact is that, in a different world, we would be fighting tooth and nail against a Republican SCOTUS nomination if the ideology of the Court was as stake. Conservatives have been fighting generations for this. Don’t expect them to give up easily and negotiate just because liberals claim it is their constitutional responsibility to allow Obama to replace one of the foremost judicial conservatives in modern American history. It’s not going to happen, and we wouldn’t want it to be either if the tables were turned.
I’m just saying it’s a high-stakes, risky move. The consequences could be far worse for them. A Sanders nomination would probably be left of anyone currently sitting on the Court, and even a Clinton nomination would probably be left of anyone Obama would submit – certainly, as left as Sotomayor, I’d think.
But I don’t see why the Republicans wouldn’t at least try to wait and see what they get. They could give up and allow Obama to nominate who he pleases now. Or they could wait and see if (1) they win the presidency or (2) at least retain the Senate.
I’m not sure whether the chances of both of those occurring is good deal less than 50%. But I’m not sure why delaying a nomination would be a “high risk move”. ANY Republican who voted for a Obama nominee would be in the far-right crosshairs come next primary time. What incentive do they have to work with Obama now? I submit that they have no incentive, whatsoever, to try and get a “moderate” nominee since what they want — and need — is another conservative true believer on the Court.
McConnell might be keeping an eye on the political calendar and the prospects for a GOP President. He hates Cruz, is likely afraid of Trump, knows both are weak in November and may decide in the late spring to let an Obama moderate nominee enter, rather than risk the next President giving him a worse choice.
Especially if he thinks that the GOP Presidential choices might drop him to the status of MINORITY Leader with a bad head-of-the-ticket.
Talk about bad timing. For Scalia, the alpha conservative on the court for the past 30 years , to die during the last year of Obama’s presidency creates an unanticipated opportunity for Obama to cement his liberal legacy in history. He immediately announced he would nominate his replacement using his Constitutional authority.
Senate Republican Majority Leader McConnell’s claim that no lame duck president had filled a vacancy in the last 80 years was proven false when it was revealed that lame duck President Reagan nominated Justice Anthony Kennedy in 1988.
I hope President Obama nominates a young, progressive, African-American that will permanently restore minority voting rights and repeal the Citizens United decision that allowed dirty money to corrupt our elections.
If Senate Republicans refuse to allow the nomination to come to the floor for an up or down vote they will ensure their defeat in the November presidential election.
Either way, liberals have just won a majority on the Supreme Court for the next generation. I can hear conservative heads exploding all over the country.
This is what KARMA feels like. SCORE another one for the good guys. YES WE DID !
Fred Rich LaRiccia
Thank you. I didn’t know he couldn’t vote on pending cases, even if his vote is known. I wonder if they’ll try to argue that point.
is that even though his initial vote may have been known in a given case, it can’t have been known exactly what he would do – would he join the lead opinion? write a separate opinion? try to persuade his colleagues to do something else? change his mind? All of those things can and do happen right up until the day the case is finally decided.
just lead a charge to say, “We know how Scalia would have voted, let’s honor his memory by changing the rules?”
SCOTUS can overturn precedent that’s a hundred years old (Citizens United) or decide elections (Bush v. Gore).
Why not do this?
It would be sooo valuable for the Conservative movement to gut the public sector unions as a last gasp of the Conservative majority on the court.
I agree that Obama needs to make a deal here. The only way we get a truly liberal justice on the court is if a Democrat wins the White House and we take the Senate.
Sri Srinivasan is getting a lot of press and may be a good choice. He has the benefit of having been confirmed 97-0 a couple years ago and he’s only 48.
He doesn’t have a clear record in either direction. He’s clerked for center-right judges and worked for both the Bush and Obama justice departments. No one seems to think he’s a strong liberal or conservative. A pro-business, social moderate may be exactly the right kind of nominee to have a chance to get through.
We should save the real battles for winning the White House, winning the Senate, and then replacing Ginsburg and Kennedy with strong liberals in the next couple terms.
Getting a strong liberal now would be incredible but unlikely and risky. Getting someone right in the middle is a fundamental shift in the court in our direction.
He is clearly pro-choice and pro-marriage equality based on cases he’s argued in the past and would be a step toward the left on social issues. But a Justice Kennedy “swing vote moderate” still votes to overturn campaign finance, carbon regulation and labor laws and voted to overturn the Affordable Care Act. Hopefully Srinivasan is a stealth liberal with an opaque enough record that they can’t nail him on any specifics but one who could move leftward once on the court.
I suspect someone like him might be the leftward version of Kennedy – certainly someone to uphold the ACA, and also the recent climate action. I would hope that when vetting for the DC Circuit, the Obama administration would have discovered that he was not that close to Kennedy.
The goal is someone who would shift the court from a regularly 5-4 right-leaning body to a more solid 5-4 left-leaning body. Someone closer to Breyer than to Kennedy.
I know that’s where the right tried to bash Sotomayor right out of the gate. Interesting to see if it gets more traction in the year of Trump.
42 current GOP Senators were among those who voted 97-0 to confirm Sri Srinivasan to the Court of Appeals in 2013. Of course these 42 could decline to vote for him again if he were to be nominated for the Supreme Court, but at least it would require coming up with a rationale.
Here are the details for the 56 current GOP Senators (this list brought to you in part because today’s Indiana-Michigan State basketball game was pretty one-sided and therefore conducive to multi-tasking).
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Current GOP Senators who voted to confirm Sri Srinivasan in 2013:
Lamar Alexander, Kelly Ayotte, John Barasso, Michael Bennett, Roy Blunt, John Boozman, Richard Burr, Dan Coats, Thad Cochran, Susan Collins, Bob Corker, John Cornyn, Mike Crapo, Ted Cruz, Mike Enzi, Deb Fischer, Lindsey Graham, Charles Grassley, Orrin Hatch, Dean Heller, John Hoeven, James Inhofe, Johnny Isakson, Ron Johnson, Mark Kirk, Mike Lee, John McCain, Mitch McConnell , Jerry Moran, Lisa Murkowski, Rand Paul, Rob Portman, James Risch, Pat Roberts, Marco Rubio, Tim Scott, Jeff Sessions, Richard Shelby, John Thune, Pat Toomey, David Vitter, Roger Wicker
Current GOP Senators who did not vote to confirm Sri Srinivasan in 2013 (with the exception of Senator Jeff Flake, who missed the 2013 confirmation vote, all were first elected in 2014):
Shelley Moore Capito, Bill Cassidy, Tom Cotton, Steve Daines, Joni Ernst, Jeff Flake, Cory Gardner, James Lankford, David Purdue, Gary Peters, Mike Rounds, Ben Sasse, Dan Sullivan, Thom Tillis
I absolutely think that the bulk will reverse their votes, but forcing them to do so, especially in the face of not a ton of new, bad information, is great for optics. Those in tight reelection battles would give their Dem challengers so much ammo if they side with obstruction.
I thought Lindsey Graham’s statement was interesting in that he did not immediately side with McConnell and the GOP presidential candidates.
Wouldn’t it be great if Graham led a group to agree to a consensus pick (umm, not Orrin Hatch, though!) largely just to screw with Cruz?
For example he was the only House Judiciary GOPer to vote against one of the articles of Clinton impeachment. Granted he voted for the other three like every other Republican on that committee, but as the only one on either side to buck their party in committee it sticks out.
…that we didn’t hear a hue and cry about his taking the oath on the Bhagavad Gita rather than the Bible, considering how much some would make out of swearing on the Koran which has many of the same stories as the Bible.
unless the Senate is just in the grip of demented rage that a black man is president.
it’s not clear to me that is not the case (sorry for double negative, but I’m not saying that it is the case).
McConnell may just intend his blanket statement as the opening gambit in negotiations with the White House over an “acceptable” nominee. However there are forces abroad in the land that may make it difficult to accept any deal. Forces set in motion by McConnell, among others.
Consider also that the whole Federalist Club agenda is so extreme that no compromise may be possible.
Obama is going to want someone who is part of the pre-Scalia judicial tradition; will the firebrands settle for that? If not, who will stand up to them on the GOP side?
PS Not great news for Kelly Ayotte, I am thinking.
But it’s probably the worst for her going up against a real champion for women’s rights like Maggie Hassan. It could hurt Mark Kirk as well since his pro-choice bona fides would be on the line, particularly if Sri Srivasan was the candidate since Indian Americans have become a quietly powerful constituency in the northern Chicagoland suburbs that gave Kirk the win last time.
Legal limbo could be a good thing for climate change and some of the other issues as “the contradictions become obvious.” Given the most recent Repug debate, the conservative movement is blowing up in conservative faces. Trump, Snyder and Flint, MI, Brownback in KS and their abysmal performance, Jindal and Louisiana, Christie in NJ, LePage in ME…. People on the ground are feeling the pain of conservative policies. Are they going to vote for a Repug Presidency when their Repug Governor just screwed the pooch?
That’s one aspect.
Here’s another. I heard an economist, Robert Stavins of Harvard, say that he expected the EPA clean power case to take a year or two to play out, before Scalia died. By that time, it may well be that the realities of the changing climate will make denial an obviously irrational opinion. At the same time, solar is rapidly becoming a commodity product that is affordable in many guises, wind and other renewables are following the same cost curves if not steeper ones, and energy systems integration is about to take big bites out of the 60% of the energy we generate that goes into waste heat, friction, transportation, distribution, and other losses of efficiency. Even a year or two more down this climate and energy transition funnel can be significant in public opinion.
However, a judiciary crippled with confusion for a year or two would probably increase the delegitimization of all government functions throughout the public. Hello Bundy boyz and Don’t Tread on Me open carry at the polling booths.
I’m pretty sure denial of the realities of a changing climate is ALREADY an obviously irrational opinion!
Ciimate change denial is not quite yet inelectably irrational. Within a year or two, it very well may be.
Stavins is one of my favorite bellwether economists on enviro issues. He is slightly left of center but loves open markets (might even deny he is anything other than neutral), helped during the stretch we created RGGI but not always in agreement with me, understands the science and is actually better at politics than most people who are academic politicians. But he does not have any real deep knowledge of the SCOTUS.
I would love to hear from an attorney who has read the SCOTUS decision from last week about fed coal regulations and who understands how the expedited challenge will be heard by the court, when a decision might be made, process, anything really that is not speculation.
A few things could impact this here:
– Will Roberts come out on this? If he asks to fill the bench, given the slate of cases this term, it gives Obama a lot of weight
– How do the cases already argued and still on the docket play out? Scalia’s vote no longer counts for cases voted but not handed down. Cases favoring Obama/Dems/”The Left” would be left standing wi a 4-4 vote, and the same for cases leaning the other way (Think TX HB-1). If more cases lean towards the left/Obama, not sure if the Rs would rather let the splits lie or send in a moderate with the hopes of coming out 5-4
– Lindsey Grahm and a very few senior R senators who still respect the institution may cross over to uphold the “old way”. A Grahm, McCain or others may vote for an Obama moderate because they respect the Senate and its tradition. Is the threshold 60 or 50 for a SCOTUS nomination? Dems only need a few cross-overs if it’s 50. Senators in swing states up for reelection may think twice about being obstructionist against a sitting President
I read that Graham proposed Orrin Hatch for the Court as a compromise candidate.
Confirmation requires 60 votes. Whoever is nominated is almost certainly going to have a hard, hard time.
It’s okay that there are contradictions — life is full of ’em. But these two bullets could swing each of ’em in the opposite direction. The first could just as easily read Because the Senate blocking any nomination is an exceedingly risky gamble, Obama should nominate an (especially) liberal candidate for SCOTUS; the second could read Because Obama would be better off trying to work a deal, the Senate should obstruct anyone.
Personally, I think the GOP is between a rock and a hard place. If they consent, they lose the right. If they obstruct, they lost the middle — and possibly senate seats in Nevada, Florida, New Hampshire, Pennsylvania, and Ohio (in addition to Illinois and Wisconsin) and, maybe even Missouri, Indiana, Louisiana, and North Carolina. Not to mention putting potentially dozens of House seats in play that weren’t otherwise. This is on top of the potential for Trump or Cruz to be the GOP nominee, leaving giant segments of the GOP at home on election day. Were I McConnell, I’d work a deal with some GOP senators and Obama so that the President gets a nominee through with vigorous but ultimately insufficient opposition, thereby providing an out for the more moderate and less moderate GOP Senators.
to look to the Constitution, which specifies that the President serves for four years. All this argle-bargle about a referendum for the Supreme Court–Cruz, Rubio et al should be thankful that Scalia isn’t alive to dissent.
Are 5-3 rulings allowed? I can recall hearing about a couple that were 6-2-1 (the one being a different dissent, if memory serves).
In other words, if eight justices are there and they can decide 5-3 or 6-2 or 8-0 even, can those cases move forward?
The court CAN function with just eight. Heck, nine is not in the Constitution and legislation has changed it from time to time. I believe the otherwise unanimous decision in US v. Nixon was 8-0 because because recently-appointed Rehnquist recused himself on account of having worked in the Nixon administration. We talk so much about the possibility of tying the vote because Scalia’s presence gave the right flank a 5-4 edge and conventional wisdom says that there could be a lot of 4-4 decisions. You never know though; Roberts I think surprised some people with his ACA-related votes.
just to reiterate. A quorum on the Supreme Court is 6. So, in the current situation, cases can move forward and be decided normally unless they’re tied. (Note, interestingly, that since Justice Kagan was already recused in the Texas affirmative action case, they are down to 7 Justices on that one and the possibility of a tie has been removed.)
…I’m hearing that David Axelrod is claiming that her elevation to SCOTUS was actually suggested by Scalia.
Harvard Constitutional scholar, Professor Lawrence Tribe, just called out Republican Ted Cruz for falsely claiming that no President had nominated a Supreme Court Justice in his last year in office over the past 80 years.
In point of fact, Professor Tribe cited six nominations, the most recent being Anthony Kennedy by Reagan in 1988.
The Republicans have told so many lies they don’t know what the truth is any more.
Fred Rich LaRiccia
He has IMO the perfect resume and reputation. For me SCOTUS is the pinnacle of a legal career and seats on it should go to people already fairly well known for their constitutional knowledge and legal acumen.
nt
…but I think he’s been around long enough to have been considered several presidencies ago.
because of his towering intellect and judicial temperament.
Fred Rich LaRiccia
in this NYT graphic.
No man, it’s A Tribe Called Quest.