President Obama will announce his nominee to replace the late Justice Scalia in a Rose Garden ceremony at 11 a.m. Most of the attention is focused on two well-respected federal appeals court judges: Sri Srinivasan and Merrick Garland, with a third, Paul Watford, also in the running. So far, the name has not leaked, which in itself is unusual.
SCOTUSblog will be live-blogging starting at 10:45 a.m., for the truly obsessed. *raises hand*
UPDATE: The leaks have begun, and indications are that Judge Merrick Garland is Obama’s choice. This actually makes a lot of sense, if you assume (as I think it’s fairly safe to do) that the Senate will block anyone Obama names. Garland verges on too old (63) to be a sensible nominee under ordinary circumstances, and he’s also (to put it plainly) a white man, and a fairly moderate one at that. He’s certainly no liberal firebrand; he would move the Court to the left, but not by a huge amount. But if Obama had been bolder, by nominating (say) Judge Srinivasan, that would have made it more difficult for President Hillary Clinton to choose Srinivasan if the Senate refuses to act this year; the same is true of any other more adventurous nominee. By nominating someone who is unquestionably extremely well-qualified, and also about as close to a consensus pick as one could reasonably expect from a Democratic president facing a Republican Senate, Obama both puts the Senate in as difficult a spot as he can manage, and also leaves the field clear for a Democratic president by nominating someone whom the next president is unlikely to have chosen.
I love this. All this election noise, and the President quietly does his job.
SRINIVASAN — the first Hindu on the Court.
Good choice, Mr. President!
Please proceed, my Republican friends.
Fred Rich LaRiccia
One report it is Garland from a Politico reporter.
https://twitter.com/seungminkim/status/710102123854352385
you’re right. CNN is reporting it’s DC Judge Merrick Garland, 63, who clerked for the late Justice William Brennan.
Score one for the good guys !
Now, please proceed !
Fred Rich LaRiccia
OF APPEALS. He was appointed by President Clinton in 1999 winning Senate confirmation 76 to 23 as a moderate.
Fred Rich LaRiccia
and was appointed to the D.C. Circuit Court in 1997 by President Clinton.
Fred Rich LaRiccia
It would have been truly shocking if he chose someone who hadn’t gone to Harvard or Yale.
Great choice, Now we can move forward!!
The Senate should do their job. What if one or two of the other older members kick the bucket, the Supreme Court goes down to 6-7 justices?
For those who care, you may watch it live from the White House.
And it makes sense since he was runner up on the shortlist last two times. It’s a situation where if he isn’t confirmed it would be a scandalous indictment of the obstructionist GOP, and if he is he won’t be around for too long which gives an opening to Kirk, Portman and Ayotte to buck the party in a way there wasn’t with any of the other choices.
Also he has a moderate reputation but most of his rulings have been center-left, even on terror issues where you’d think he’d be a bit more deferential to the government based on his own record as Oklahoma City prosecutor.
Ayotte say NOT to the Constitution. She owes the country a hearing and a vote. I am sure some right wing buttonhole in NH will say she owes nothing to an old lefty in MA, but NH has outrageous power because we let them have two Senators despite their tiny size in our great democracy, so we can demand she earn that seat.
I will come out of semi-retirement to campaign against her.
Ayotte says
NOT
to the Constitution.
I hope that “the Constitution” isn’t the way that they argue this, because the Constitution doesn’t require the Senate to vote at all, and indeed doesn’t even require the administration to nominate anyone. All we have is that a nominee isn’t confirmed without a vote. I hope that, rather than using this argument, they try to liken it to the various attempts to force a govt shutdown over the years: reckless, etc.
You are now seeing that your nominee is going to be Donald Trump, who has no ideological commitment to the movement conservatism that drives the Supreme Court nomination process. The risk that Trump is going to have a negative impact on the Senate elections in November, and that you could wind up with a Clinton nominee being confirmed by a Democratic Senate majority.
I almost think that they dick this around for awhile, but suddenly decide to vote if things get crappy over the summer.
The GOP strategy lately has been to harumph for the Tea Party for a while to show they Sent A Message, then negotiate an exit strategy where they can blame those mean Democrats for the outcome.
So Garland is nominated today. McConnell can hold firm, while they work on the “Garland Is An Extreme Liberal” messaging. It doesn’t matter whether he is an extreme liberal.
Then, somewhere in early summer, the tone can change a bit. We will not hold a vote FOR THIS NOMINEE. Nominate someone who is more moderate and not Garland the Extreme Liberal, and we will hold a vote.
Do you suppose that the administration won’t immediately go into “negotiation mode” and thus pragmatically withdraw Garland and submit someone to his right?
They have not to date ever done anything to suggest that they are willing to call a bluff and go to the mat on something like this– that’s one of the reasons I have supported Clinton.
No, I don’t think what you suggest will happen. Garland is, in effect, a compromise candidate: he’s much older and more centrist than Obama would be likely to nominate under other circumstances.
What I do think is possible is that, if the election on November 8 shows a Democratic president and Senate coming into power, Obama might withdraw Garland’s nomination on November 9 before the lame-duck session has a chance to act.
Obama has never been ruthless in this way, and, alas, neither have the Democrats in the Senate.
True lame duck time, after the election. I half expect a vote on a justice in late November.
I just heard Merrick Garland at the Obama press conference and I am now in love with the man. Check out the NPR coverage of it, live now.
A decent and fair minded man, and he will likely be destroyed by this partisan bulldozer stacked against him. With Trump at the top I suspect blue state Republicans with some sense will ditch these talking points and take a maverick vote. There is absolutely no reason for socially moderate Mark Kirk to oppose this nominee.
because I wept through President Obama’s nomination ceremony for Judge Garland in the Rose Garden.
Then, I really lost it when the good Judge broke down recalling his humble immigrant family background.
Thank you, Mr. President, on behalf of a grateful nation, by giving us a true patriot to champion justice for all of our people.
Fred Rich LaRiccia
I’m not surprised that the Republicans’ opening gambit is to stay on script and say that there is no chance of holding hearings. They were certainly going to do that no matter who the nominee was. However, Obama wisely announced the nomination just before a two-week Senate recess in which Senators will go back to meet their constituents.
Given that most Americans (including even many Republicans) think that Obama’s nominee should at least get a hearing, we might see some wavering among some swing-state Republicans even by the end of these next couple of weeks.
when he doesn’t receive an up or down vote? We go without a full complement of SCJ’s. A recess appointment is unlikely. But…
Does Obama withdraw the nomination? Does Hillary just go with the nomination? Does she nominate someone else?
Politically, this is a nail in the GOP coffin, though hardly the last nail.
Garland is a great and fabulous moderate, and the GOP mind hive is thinking about the possibility that if Garland is laid out cold during this year, that HRC might nominate a genuine liberal.
I want the profits from the local laundry that is cleaning the soiled undies of the GOP members who don’t know what to fear most. They fear everything, but this conundrum must lead to a lot of browned shorts.
Wait until the day after the election and if Hillary wins, confirm Garland then (after pleading with Obama not to withdraw him), or, if a Republican wins, don’t hold a vote.
The GOP can do whatever they want. People already hate them and will hate them more, but they’ll still win the seats they’re likely to win.
for being an appeasement strategy because he hasn’t been progressive enough in his rulings; but it’s only here on BMG that I’m told he’s too old, or rather that he “verges on too old (63) to be a sensible nominee under ordinary circumstances.”
Some posters and commenters on BMG seem to have a fixation on advancing age — it’s always seen as a bad thing. Nevermind that a jurist might acquire wisdom as he or she gets older.
No, it’s not even sensible to consider someone in their early 60’s for the Supreme Court because, why? Because he or she might only be able to serve on the bench for about 20 years before keeling over and dying during an oral argument one day? Can we really predict today that if such a thing were to happen in, say 2037, that it would result in a bad outcome for Democrats or progressives?
Would anyone say that someone verges on being too Black or Gay or Jewish or feminine to be a sensible Supreme Court nominee? If someone’s intellect is affected due to their age, then, certainly, it is not sensible to nominate them. But disqualifying someone from an office or position based simply on their age is …well, age discrimination, IMHO.
I just read a CNN piece that makes a different argument: that Mr. Garland’s age makes him an easier choice than if Hillary Clinton is elected and offers a nominee (emphasis mine):
As it turns out, I’m 63 myself. I’m sensitive to age discrimination. I don’t think that’s what’s going on here, and I don’t think this an “appeasement” strategy.
I think Mr. Obama has skillfully put the GOP between a rock and a very hard place.
Whether 20 or 30 years from now, there’s roughly a 50-50 chance that the POTUS will be more or less liberal-ish, and a 50-50 chance that the POTUS will be more or less conservative-ish.
Now lets say that the Dem SCOTUS nominees have 20 year tenures, and the GOP SCOTUS nominees have 20 year tenures. What happens?
On average, we have 4.5 Dem appointed justices, and 4.5 GOP appointed justices.
But lets say, to be more extreme so that the math is easy, that the Dem SCOTUS nominees have 15 year tenures and the GOP nominees 30 year tenures. Now, even though there’s even odds on a Dem POTUS, the SCOTUS is stacked 6-3 conservative.
Age doesn’t matter per se. Expected years of service on the SCOTUS does, and it turns out that age and health are the two best predictors.
Put another way, if a potential justice said to POTUS “I’ll only serve ten years, then retire” that person won’t be nominated — and, frankly, shouldn’t be. Why put your political vision into a 3-6 hole?
but the simple fact is that, other things being equal, a younger appointee is likely to serve on the Court for longer than an older one. Justices have life tenure, which means that they are among the most enduring parts of a president’s legacy. It’s natural – and, IMHO, sensible – for a president to want their appointees to serve for a very long time.
in their family is likely to serve on the Court longer than someone with a family history. Maybe the president should require every potential appointee to undergo a genetic screening to make sure they don’t have a proclivity to some disease that will lessen the chance they will last the full 40 years, or whatever the time period it takes to fulfill a president’s legacy. Or maybe a president should reject potential candidates who smoke or who smoked in the past.
Even if all things were equal, I think it is very difficult to say that it would be more sensible for Obama to have nominated a 55-year old jurist rather than a 63-year-old one. Not only is it difficult to say for sure how long a particular individual will live; but isn’t the potential quality of the person’s decisions more important than the length of time they will be writing them? Is it at all sensible to nominate a relatively young candidate who will sit on the bench for 30 years before asking his first question?
In recent decades, SCOTUS nominations have become a very high stakes, high-impact, long duration matter. I would be very surprised if they don’t try to weed out smokers and those with a family history of massive coronaries in the age 60s years. Indeed, not to so would be political malpractice.
but what about Alzheimers or dementia? Can other justices vote to get rid of one of their own?
There certainly isn’t a constitutional provision a la the 25th amendment dealing with presidential incapacity and I would hope something like that isn’t buried in SCOTUS procedural manuals.
A Supreme Court judge who is clearly unable to perform his or her duties can be impeached. Interestingly, the Washington Post explored this in a piece last December — ironically because of yet another provocative statement from the late Mr. Scalia.
…but the Constitution as currently written says the justices hold office during good behavior and elsewhere says people can be impeached specifically for treason, bribery, or other high crimes and misdemeanors.
This has come up before – Justice Douglas suffered a stroke while serving on the Court, and it was a big problem. There is no mechanism other than impeachment to force a Justice’s retirement. Douglas eventually resigned, but it wasn’t pretty.
for term limits on the court.
…but would be open to a relatively high (say, 80) mandatory retirement age.
It is really much more clever than a mandatory retirement age would be. And it resolves the whole pressure to appoint a youngster to the court thing, which the 80 years retirement most certainly does not.
One thing that struck me: there’s no Constitutional guarantee of life tenure, and so no Constitutional amendment would be needed.
Nothing I haven’t heard and I still am very much opposed. I like the randomness and the wisdom of the ages that comes with life tenure. It should be virtually guaranteed to be their last job which life tenure/high retirement age does. The Constitution absolutely DOES provide for life tenure through the euphemistic “during good behavior” a common phrase at the time meaning exactly that. You could not do this without a constitutional amendment the last paragraph of the article notwithstanding.
Current rumor has it that Orrin Hatch is suggesting that the Senate “might” consider the nomination after the election if Hillary Clinton wins.
I hope that Mr. Obama makes it eminently clear that the shelf-life of this nomination is limited. If the Senate has not acted on the nomination by the time of the election, I think Mr. Garland should withdraw himself from consideration so that the new President is able to start with a “clean slate”.
Why should he do this, exactly?