The Supreme Court Vacancy

[stringer bell]

I think this story will be the biggest one of the election season. There are so many factors in play and so much at stake, it will be fascinating how it all plays out. Here are my bullet points:

 

1)  Rare. Presidents are rarely presented with opportunity to make a Supreme Court nomination in an election year. Further, this vacancy has occurred in the eighth year of Obama's presidency, meaning he is not going to be on the ballot and that has been known since November of 2012.

 

2) Legacy. Obama will be making his third Supreme Court appointment. Not many get that opportunity and this appointee (if confirmed) would switch the ideological composition of the court from quite conservative to moderate or even a bit left-leaning. If this nominee is approved, Obama may well have a couple justices on the Supreme Court until the middle of this century.

 

3) Unprecedented. No Supreme Court nominee has ever been denied a hearing and every nominee has either been confirmed or denied within 135 days. Republicans are proposing that Obama's nominee not be considered at all. If the Republicans hold firm, we will have a precedent virtually outlawing Supreme Court nominations in the last year of a president's term if the opposition party has the majority.

 

4) Effect on the election. If Obama's choice is viewed as a competent and qualified jurist, the Republican presidential candidate will have another issue working against him. Further, many vulnerable Senators would have this issue raised against them. This could certainly be the issue that flips the US Senate back to the Democrats in 2016.

 

5) GOP Implosion. Again a competent and qualified nominee will leave Republicans in a no-win scenario. Hard-core conservatives and Obama-haters will fight any nominee, while moderates and those trying to win an election in purple or blue states will be inclined to consider or perhaps approve the yet-unnamed nominee. Republicans are already close to civil war, this issue could put their fracture in front of everyone.

 

 

 

 

[Brock Beauchamp]

I don't think this is an election issue because I think it will be resolved well before the election. The GOP is talking a big game right now but given the fractured nature of the party, I think they'll circle the wagons and bail out of their rhetoric after Obama nominates a moderate judge. The nomination process is a Senate issue, which means the GOP doesn't have to fight upriver against the Wild West that is the House of Representatives.

 

Given the current situation the GOP finds itself, they're screwed if they don't accept a moderate judge from Obama. They're on the verge handing away the Presidential election and the closer they come to that point, the more likely it is Clinton will get to name a lefty-communist-pinko judge because nothing can stop her next January. The GOP will have spent all their ammunition fighting Obama's moderate nomination.

 

I think they'll take the justice they don't like over the justice they hate.

[nicksaviking]

 

Given the current situation the GOP finds itself, they're screwed if they don't accept a moderate judge from Obama. They're on the verge handing away the Presidential election and the closer they come to that point, the more likely it is Clinton will get to name a lefty-communist-pinko judge because nothing can stop her next January. The GOP will have spent all their ammunition fighting Obama's moderate nomination.

 

I think they'll take the justice they don't like over the justice they hate.

 

I think they are past the point of no return there, any November ballot with Trump on it is a victory for the Democrats and Trump will be on the ballot one way or another now. I think they're on the verge of giving away the Senate and giving up seats in the House.

[Squirrel]

As I stated in the other thread, this 'bluster' about blocking any nomination from happening is the only thing they can try and do to stop Obama from even nominating anyone because once he does, they are between a rock and a hard place, and they know it. This nomination alone isn't an election issue per se, but it does make people more aware of who one votes for in other areas, Senate in this case, that it can make a difference. Long before Scalia's death, when the election thread started, I said that SC nominations were always high on my priority list and who would be making them and approving them was a major concern for me this election. As a woman, I would be voting for the Democrat no matter what, unless they were completely off the rails, and this was the reason why.

[SweetOne69]

The first challenge is Obama has to appoint a nominee.  Apparently this is more difficult than Obama imagined.  So far everyone that he has asked if they were interested has turned him down.

 

Also, since 1/3 of the Senate is up for re-election, I believe they are going to be in recess from around mid-summer until after the election.  So if Obama doesn't get a nominee by June, the GOP can just claim that they didn't have time to get it on the schedule before the adjorn.

[Squirrel]

The first challenge is Obama has to appoint a nominee. Apparently this is more difficult than Obama imagined. So far everyone that he has asked if they were interested has turned him down.

How many has that been? I thought there was just the one, and he wasn't even asked, was just rumored to be under consideration and removed himself from the process before it began. But to be honest, despite this being an important issue for me, I haven't been following it too closely.

[PseudoSABR]

There's been NO Reports that any one has 'turned down the nomination.'  The Nevada Governor withdrew his name from consideration, but he was not offered the job; and my reading was that his name was politically floated to see if the Republicans would eat their own (which they did).

[PseudoSABR]

For those of you who do want to keep up with the news and speculation, Scotusblog is a great resource.

[Willihammer]

 

I don't think this is an election issue because I think it will be resolved well before the election. The GOP is talking a big game right now but given the fractured nature of the party, I think they'll circle the wagons and bail out of their rhetoric after Obama nominates a moderate judge. The nomination process is a Senate issue, which means the GOP doesn't have to fight upriver against the Wild West that is the House of Representatives.

 

Given the current situation the GOP finds itself, they're screwed if they don't accept a moderate judge from Obama. They're on the verge handing away the Presidential election and the closer they come to that point, the more likely it is Clinton will get to name a lefty-communist-pinko judge because nothing can stop her next January. The GOP will have spent all their ammunition fighting Obama's moderate nomination.

 

I think they'll take the justice they don't like over the justice they hate.

I haven't been following this very closely but based on what you describe, would it be a sound strategy for Obama to nominate a lefty, force the R's to deny a hearing, thereby potentially gaining a few house seats in the next election, along with the WH and obviously whoever Hillary nominates (a lefty)?

[Brock Beauchamp]

 

I haven't been following this very closely but based on what you describe, would it be a sound strategy for Obama to nominate a lefty, force the R's to deny a hearing, thereby potentially gaining a few house seats in the next election, along with the WH and obviously whoever Hillary nominates (a lefty)?

I don't know, I go back and forth on this.

 

As a "party move", the surest bet seems to be a nomination of a centrist judge and putting the ball back into the Republican court. Make them reject a centrist and look bad to moderates. Maybe the Democrats win back the Senate as a result (unlikely but hey, not out of the question).

 

As a "presidential move", nominating a more liberal judge would be in Obama's best interest, as it reinforces his legacy.

[nicksaviking]

I have to say, for all the talk about the current/previous makeup of the court being conservative and this nominee putting the court over the top for the liberals, there haven't seemed to be many conservative victories in the court for quite awhile.

 

I mean even the "conservative" judges are taking a crap all over the abortion cases that the insolent Red States were causing the Court to see recently. I really don't know if it's actually going to make much of a difference if the new judge is labeled "moderate" or "liberal". It's not like they are voting on policy, they are interpreting the laws, and it seems to me moderate folks, or at least judges, are interpreting laws the same way the liberals are, and largely, so are the conservative SC judges.

[Willihammer]

 

I have to say, for all the talk about the current/previous makeup of the court being conservative and this nominee putting the court over the top for the liberals, there haven't seemed to be many conservative victories in the court for quite awhile.

 

I mean even the "conservative" judges are taking a crap all over the abortion cases that the insolent Red States were causing the Court to see recently. I really don't know if it's actually going to make much of a difference if the new judge is labeled "moderate" or "liberal". It's not like they are voting on policy, they are interpreting the laws, and it seems to me moderate folks, or at least judges, are interpreting laws the same way the liberals are, and largely, so are the conservative SC judges.

True but most people aren't elite legal minds so we reduce judges to "liberal," "moderate," "conservative" etc. based on their interpretations of one or two hot button topics. The gay marriage vote, for example, is going to cement Roberts and Scalia as "conservatives" in the minds of a lot of folks, even though their opinion was 100% about constitutional interpretation and 0% about the foundation of the family or love or society or things the rest of us bring up when talking about gay marriage.

[Willihammer]

 

 

I don't know, I go back and forth on this.

 

As a "party move", the surest bet seems to be a nomination of a centrist judge and putting the ball back into the Republican court. Make them reject a centrist and look bad to moderates. Maybe the Democrats win back the Senate as a result (unlikely but hey, not out of the question).

 

As a "presidential move", nominating a more liberal judge would be in Obama's best interest, as it reinforces his legacy.

Maybe I'm overthinking this but it seems like the party move would be to force the R's to follow through with blocking a hearing. All Obama would need to do is find someone with a semi-controversial decision on say, immigration. Then D's in every district could paint the R party as "those inept derelicts in Congress" which is the #1 popular complaint about politicians. Maybe that would be enough to win a few House seats (even though confirming SCOTUS nominees is a Senate action, I don't think that would matter).

But, maybe that is all too gamey for Obama's liking. Or maybe he is not willing to assume Clinton will win the next election.

[SweetOne69]

 

How many has that been? I thought there was just the one, and he wasn't even asked, was just rumored to be under consideration and removed himself from the process before it began. But to be honest, despite this being an important issue for me, I haven't been following it too closely.

 

I haven't been following too closely either, but I did see a list of 4 or 5 that reportedly said no thanks

[SweetOne69]

 

 

There's been NO Reports that any one has 'turned down the nomination.'  The Nevada Governor withdrew his name from consideration, but he was not offered the job; and my reading was that his name was politically floated to see if the Republicans would eat their own (which they did).

 

While this is technically true, there have be 4 or 5 that have said they were not interested when the White house inquired.

[PseudoSABR]

 

While this is technically true, there have be 4 or 5 that have said they were not interested when the White house inquired.

Where are you getting this information? (Link?)  I've been following reasonably closely and haven't seen anything beyond the Nevada Governor's withdrawal.

[ashbury]

I don't know, I go back and forth on this.

 

As a "party move", the surest bet seems to be a nomination of a centrist judge and putting the ball back into the Republican court. Make them reject a centrist and look bad to moderates. Maybe the Democrats win back the Senate as a result (unlikely but hey, not out of the question).

 

As a "presidential move", nominating a more liberal judge would be in Obama's best interest, as it reinforces his legacy.

My advice to Obama, were he to solicit it, would be to simplify this and pick the nominee he thinks would be the most outstanding jurist. Nominate somebody you would love to see on the Supreme Court, an asset to the nation for 30 years if we should be that lucky, and let the chips fall where they may as regards confirmation.

 

Such selection process is rarely quite that simple and clearcut in judicial terms, so if it's down to a list of two or three, maybe weed out the one who is farthest left, if that one really is FAR left. But don't nominate someone mainly on the grounds of confirmability. The scenario you don't want at the end of all this is "we won! we won! ... wait, isn't there some way we could have lost?"

 

And don't bother at all with electoral calculus. Regardless of who is nominated, the political machines on both sides will be adept at milking it for short-term advantage as they perceive it.

[stringer bell]

I don't believe that Obama will be able to find a nominee that can get 60 votes in the hyper-contentious time leading up to a presidential election. Cruz and those of his ilk have promised a filibuster of any Obama nominee and I believe they are committed enough to go through with that.

 

I haven't seen anyone other than Sandoval say "no thanks", but I believe some who have been approached have declined because they (like me) see no way that they will be confirmed by the Republican Senate at this time.

 

Regarding the current court, I read a pretty good piece online from a business paper (can't find the link now!) which said that including Scalia four of the five most business-friendly justices on the court since 1948 were on the court now. On so-called social issues, Kennedy is a moderate, but he is one of the most pro-business justices in recent history. Roberts seems more moderate when the issue is executive power and seems reluctant to undo legislation, such as the ACA.

 

Republicans have wed themselves to "strict interpretation" of the Constitution, which is how Scalia described himself, but I never could square that with the Citizens United case, among others. It seems to me that everyone is opposed to activist judges when the side they favor loses.

[PseudoSABR]

NPR reports that Obama is in the process of interviewing several candidates. 

Sources close to the process say that among those being interviewed are Chief Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia; Judge Sri Srinivasan, of the same court; Judge Paul Watford, of the 9th Circuit Court of Appeals based in San Francisco; Judge Jane Kelly, of the 8th Circuit Court of Appeals based in St. Louis; and U.S. District Judge Ketanji Brown Jackson, who serves in Washington, D.C.

[nicksaviking]

I know the conventional wisdom is that some of the better choices are going to chose not to be nominated because the nominating process looks like it's going to be a farce if there will be on at all, and no one wants to get roasted in congress on a fool's errand, particularly since it will hurt their chances at a selection at a later date.

 

But will it really hurt their chances later? This is a unique situation where everyone knows that the conservatives are making a mockery of the situation. Would there even be a stain? Getting their name out there and looking like the judge-in-waiting would seem to be more like a badge of honor this time.

[ashbury]

 

I know the conventional wisdom is that some of the better choices are going to chose not to be nominated because the nominating process looks like it's going to be a farce if there will be on at all, and no one wants to get roasted in congress on a fool's errand, particularly since it will hurt their chances at a selection at a later date.

 

But will it really hurt their chances later? This is a unique situation where everyone knows that the conservatives are making a mockery of the situation. Would there even be a stain? Getting their name out there and looking like the judge-in-waiting would seem to be more like a badge of honor this time.

I agree. I'd have to be awfully cocky to believe that a SC nomination would be coming my way at any given future point in time. I'd accept an offer and go from there; who knows, at worst I would be an interesting historical footnote instead of just one of many in a list of Circuit court justices.

[Craig Arko]

A bit of fun, even during this debacle.

 

http://www.startribune.com/the-university-of-minnesota-hosts-a-rare-collection-of-bobbleheads-appealing-to-the-u-s-supreme-court/371540071/

[PseudoSABR]

Via CNN

Adalberto Jordan, a federal judge in Miami seen as a top contender for the Supreme Court vacancy, has withdrawn his name from contention

 

 

[PseudoSABR]

Via Reuters

 

The White House has narrowed its search for a U.S. Supreme Court nominee to three federal appeals court judges, Sri Srinivasan, Merrick Garland and Paul Watford

 

[Brock Beauchamp]

We're throwing a party tonight with the theme "Fireside Chat" so I've been listening to FDR's iconic speeches.

 

I stumbled across this speech about the Supreme Court. Oh, sweet Jesus, his speech from March of 1937 is hilarious. This is must-listen stuff.

 

http://www.oldradioworld.com/media/Fireside%20Chat%20with%20Franklin%20D%20Roosevelt%201937-03-09%20Fireside%20Chat.mp3

[Brock Beauchamp]

Link is being stupid on mobile and the source site is terrible on mobile. You'll need a desktop.

[PseudoSABR]

Down to two.

 

President Barack Obama is likely to announce either Judge Sri Srinivasan or Judge Merrick Garland as his pick for U.S. Supreme Court nominee and the announcement could come as early as Wednesday, a source familiar with the selection process said on Tuesday.

[DaveW]

 

Down to two.

Srinivasan, who was born in India and grew up in Kansas, would be the first Asian-American and first Hindu on the high court. Obama appointed him to the appeals court in 2013. The Senate confirmed him in a 97-0 vote.

 

 

 

This seems like a no brainer to me as a choice. How can the senate literally come up with a reason for confirming him to a high court 3 years ago 97-0, but not now?

[stringer bell]

 

This seems like a no brainer to me as a choice. How can the senate literally come up with a reason for confirming him to a high court 3 years ago 97-0, but not now?

The answer, Dave, is that Republicans have convinced themselves and their base that Obama is not the legitimate chief executive and by extension his selection isn't legitimate either. It is so wrong, but more than 50 Senators so far are going with this "logic".

[Squirrel]

Aaaaaand ... it's Merrick Garland:

http://www.vox.com/2016/3/16/11244558/merrick-garland-supreme-court-scalia