The math here is interesting for the republicans. A candidate has to confirmed by the senate judiciary committee (11/9 republican) then the whole senate (54/46 if the independents go dem as usual).
The general consensus, however, is that the democrats have a good chance at winning back the senate.
So the question for republicans is, do they accept a moderate candidate now, or stall until the election and risk having a democratic senate (and president, but that race is far too early to have a sense of, unlike the senate), and take the heat for taking 3-4 times as long as usual to confirm a justice, and have any cases under review potentially go 4 to 4 on the court, which means the lower court rulings in those cases stand, or the justices can request that they be re-argued.
For the democrats, you've got the current situation vs a chance to get someone more liberal in during 20 days of obama + the next senate (although pushing a nominee through in jan 2017 would have terrible optics), or waiting. Your risk is that the republicans win the senate and the president.
My sense is that the democrats will put forth someone fairly moderate, but it's hard to tell if the senate will stall it out or not. It likely depends on the nominee.
The Republicans hold all the cards, but the dems are probably in a slightly stronger position, because they only need two republican senators on the judiciary to decide that they'd rather not risk it, and two more in the full senate.
The Republicans have more or less already announced that they will refuse to consent to a replacement this term. That could change if Hillary wins (she will likely take the Senate with her if she does), but, the odds-on outcome is: Obama nominates someone, but no Obama nomination is confirmed.
It's not just that it's an election year, but that it's a closely divided Senate with a liberal President replacing the most reliable and influential conservative on the Court.
They're obviously going to say that now (keep in mind so far the people who've said that are Cruz who is on judiciary but will never approve any Dem candidate and McConnell who doesn't matter.)
The ones who matter most are probably Flake and Tillis since they're the least conservative among the judiciary members not up for reelection.
I think we'll see an initial stall for sure, and then in a few months it will depend on how polls are going, both in the senate and national races. Hillary + dem senate is the nightmare scenario for republicans, so they're likely to make a deal if that's still a strong possibility in July.
I agree that the 2016 election becoming a foregone conclusion is a circumstance in which a nomination might happen, but it's the only one. Equally importantly, by the time the election becomes reasonably predictable, Obama will be butting up against the limits of the window in which he can get a nomination through even in favorable conditions.
Obama will not replace Scalia. I like the Dem's chances this cycle and so am not despondent about this.
The longest confirmation in history was apparently Brandeis at 125 days. Assuming Obama takes about a month to get a nomination together that leaves just over 300+ days left in this administration. That said, would not surprise me to see the Senate serially find reasons to reject say 3-4 candidates or screw precedent and just take forever to run out the clock on purpose.
They will likely also have pro forma sessions to deny a recess appointment as well [1].
One option Obama would have that might fill the seat before his term is up is to go back to providing a real list of a number of candidates instead of the "list of one". The chance of this happening is near zero of course; I guess he'll nominate someone a bit closer to the center and let them be stonewalled, something which may help the democrats in the election.
I imagine a lot of good candidates, knowing the nomination is destined for limbo, might opt out of the media circus and decline it.
Of course if the Dems win the election the incentive to stall fades considerably.
Abe Fortas resigned May 15, 1969 and Harry Blackmun wasn't confirmed until May 12, 1970 (362 days) after the failed nominations of Haynsworth and Carswell. Likewise, Lewis Powell died June 26, 1987 but Anthony Kennedy wasn't confirmed until February 3, 1988 (222 days) after the failed nominations of Robert Bork and Douglas Ginsburg.
There may be other similar situations but those are the ones that came to mind.
Perhaps it would have better been described as 'The longest single confirmation process in history'. In terms of the whole replacement process, where it included candidates that were rejected, there have been times over 125 days ( as you mentioned ).
Well the simplest game theory is (100% chance to be nominated now but near 0% chance to be confirmed) vs (??% chance to be nominated later but 90%+ chance to be confirmed) which seems fairly straightforward. Given current outlook for POTUS election I would decline in their shoes. An older nominee or one that expected 8+ years of GOP presidents might reasonably say this is their only chance and take it though.
I guess an interesting question is whether being nominated now and not approved or stonewalled until withdrawn disqualifies you from being nominated again. I think the default answer is 'yes' (disqualified) although various circumstances could allow it to happen.
This seems like very unreasonable estimate. Being election season, the Republicans will be sensitive to public opinion and stalling for 9+ months could cement the perception of being obstructionists. If Obama nominates a somewhat moderate candidate, they may decide to live with it.
Unlikely to be correct re: nomination, though it's difficult to know how the election will effect the confirmation process, and vice versa. Kagan was nominated May 2010 and confirmed August 2010; Sotomayor was nominated May 2009 and confirmed August 2009. I'm inclined to expect a nomination sooner rather than later, potentially of a candidate with very strong Democratic support. If Republicans oppose the nomination, that could be used as political leverage against them during the election.
Edit for some further thoughts: I could see this play out several different ways. Dems could potentially stall on the nomination, to maximize the "gamesmanship" rhetoric leverage of any Republican opposition to the nomination. But if the nominee were confirmed by June, the whole thing might be largely forgotten by the election in November. So potentially, we could see a very quick confirmation. This definitely is a massive boon to the Democratic party; they've just been handed a wildcard and have every ability to choose exactly how to play it.
I'm no fan of dehumanizing death, but Scalia's death will have enormous ramifications. Keep in mind:
1. Burwell v Hobby Lobby (private corporate responsibility for birth control re: Obamacare) was 5-4
2. Legal pragmatism arguments against criminal justice matters under equal protections grounds have already been very close to succeeding (or actually have). Could mean the end of the death penalty in the US.
3. Scalia opposed Guantanamo inmates' ability to challenge their detention in US Courts in the Boumediene v Bush decision
4. Scalia consistently opposed expansion of national healthcare
5. Citizens United was 5-4 with Scalia supporting the decision (this is what created superPACs), so potentially this could result in a limitation of corporate personhood
>5. Citizens United was 5-4 with Scalia supporting the decision (this is what created superPACs), so potentially this could result in a limitation of corporate personhood
I think that phrasing is deceptive. The question isn't whether corporations are people with rights, but whether people retain their rights when they coordinate the exercise thereof through a corporation, which includes non-profit groups. It should be a red flag that abolishing that right would abolish the free press without some special exemption. That requires the government to start defining who is press and who is not, which if anything is a quickly fading distinction. The distinction between MSNBC/Fox News and a SuperPAC is not so clear. (Thankfully, we have such an exemption because the first amendment particularly protects the freedom of the press, in addition to the general freedom of speech. There's a lot of examples of redundant provisions in the Constitution, and I think this is one of them. The freedom of the press flows naturally from all of the other freedoms in the Constitution.)
The particular case was actually about a political group that made a film criticizing Hillary back in 2008 during the primary season. The government wanted to ban them from promoting it during the two months leading up to the election. How can anyone think that's proper?
Let's say that you and I shared a passion for a political idea. We want to convince people of it and effect change through the political process. What would we do? We'd set up a non-profit (a corporation), convince donors of our cause, spend their money on pamphlets, broadcast ads, internet ads, discussion forums, etc. We'd support candidates that back our idea, and oppose those who oppose it. That is freedom at work and it's exactly what the Citizens United decision protects.
> whether people retain their rights when they coordinate as a corporation.
You are incorrect. Citizens United was decided based on the notion of corporate personhood -- the notion that corporations themselves have rights as if they are a person. There are very succinct and upheld limitations on individual monetary contribution to campaigns.
However CU broke that by giving people the ability to launder political money through a corporation.
Also, most non-profits (those 501c3s that want tax exemption) can not do any sort of campaigning. Those that do are subject to taxes.
CU said specifically that corporations are people that can "say" (aka spend) whatever they want to get their message across. People can make individual donations to support this effort essentially getting around existing campaign restrictions.
Money does not equal speech and there was a good reason monetary donations were restricted. By removing the restrictions they have reduced the ability of the average person to be heard because they now have to buy a bigger megaphone than the billionaires.
You really do need to read up on corporate personhood and election law. Let me guess... FOX News fan?
It's also fairly consistent with past SCOTUS decisions, like the 1957 decision United States vs Auto Workers:
"The principle at stake is not peculiar to unions. It is applicable as well to associations of manufacturers, retail and wholesale trade groups, consumers' leagues, farmers' unions, religious groups, and every other association representing a segment of American life and taking an active part in our political campaigns and discussions .... It is therefore important -- vitally important -- that all channels of communication be open to [all of the above types of associations] during every election, that no point of view be restrained or barred, and that the people have access to the views of every group in the community."
Scalia's comment in CU itself is relevant here:
"The [First] Amendment is written in terms of “speech,” not speakers. Its text offers no foothold for excluding any category of speaker"
In this case, he's referring to the "category" of a corporation, which is referenced in the 1886 decision Pembina Consolidated Silver Mining Co. v. Pennsylvania:
"corporations are merely associations of individuals united for a special purpose"
which parallels the 1830 statement in Providence bank vs Billings by Chief Justice Marshall:
"The great object of an incorporation is to bestow the character and properties of individuality on a collective and changing body of men."
and even further back, to the 1790 case The Rev John Bracken v. The Visitors of Wm & Mary College, which was in essence about the question of whether those running the college were bound by the decisions of its original founders or whether they had the right to, collectively, make changes according to their assessment of how to best carry out the common purpose for which the college existed.
While not directly about speech, the 1819 case Dartmouth College v. Woodward establishes limits on the legislature's ability to modify private contracts, such as the charter that established Dartmouth, and a series of later decisions specified that any modification must not harm shareholders, founders, members, etc.
And Santa Clara County v Southern Pacific Railroad Company (1886) establishes (indirectly) that corporations are entitled to the same type of 14th amendment due-process and equal-protection rights as individuals. Basically, just because people have organized into a group doesn't mean the government can treat them worse than it would if they were not corporately organized.
Of course, the fear that democrats may take both the presidency and the senate might motivate senate republicans to make a deal now, since there's a nonzero chance an immediate deal comes with maximal leverage.
An _incentive_ to oppose I can see. But I see no duty or obligation to not do your job for 11 months just because you don't like it. Brinksmanship may be a common part of the job, but it's not in the job description.
While I believe the immediate announcements are token and positioning (the more obstinate they appear, the better the odds of a more moderate candidate) it doesn't make me LIKE it any better.
Which is why they are likely to put up token opposition - enough to placate their supporters. Everyone panders to the center when election time comes, because that's where most of the voters are. This is why the rhetoric is extreme during the primaries, but is significantly toned afterwards.
They have a majority of Senate. They don't need token opposition. They can just decide, as Mitch McConnell has already said, that this is a rare opportunity for the people to vote directly on the direction they want to take the court, and that's that.
This isn't unprecedented. Obama is a lame-duck President facing a majority opposition party in both Houses of Congress. His influence is close to its nadir. Scalia is a lion of the GOP. It would have been hard to replace him in 2015. It's probably impossible in 2016.
That depends on whose definition you use, but this discussion is mostly about precedent; look up the "Thurmond Rule" to see why technical strictness about the term "lame duck" isn't really an issue here.
The Thurmond Rule, which is amorphous and inconsistently applied, only applies when an incumbent has "six months or so" remaining in his term. We are still several months away from that excuse being valid.
Will the central-mass of the voting public be amused by yet another "obstructionist move" by Republicans? That is how it will be spun by the Democrats: the ads will basically write themselves ("instead of working, the GOP is shutting down government. Again")
Refusing to confirm a nominee isn't "shutting down the government", and speaking as a liberal and moreover a supporter of the Democratic coalition, I don't think our side does itself any favors by pretending like the GOP's entirely predictable refusal to allow Obama to appoint a Supreme Court justice on his way out the door is unprecedented or harmful.
The GOP is making Scalia's replacement a campaign issue. So be it! If the Democrats win, they'll have earned a mandate to replace a lion of the Republican Party with a committed liberal.
It will be interpreted as Republicans shutting down the government... again. Moderates and Independents, and Centrists on both sides tend to strongly dislike that, and it could swing the election to a Democrat victory.
No it won't. The Supreme Court will function just fine with one open seat. Ties affirm whatever the lower court decided. Whole Supreme Court terms have elapsed, within the last 50 years, with empty seats.
I think it's far easier to sell the argument that the voters should decide on who gets to nominate a replacement for Scalia, than that we should shut down national parks or whatever. These aren't remotely the same type of "shutdown".
That might be the case, but stalling a justice nomination isn't as severe or visible as a government shutdown and might not get the same level of attention.
Conn Carroll, spokesman for Mike Lee (R, Utah, on the Senate Judiciary Committee) concurs, inquiring: "What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia?" and proposes that "If anything this will put a full stop to all Obama judicial nominees going forward."
Ted Cruz has already called for the process to get delayed for the next president. (Which seems ridiculous to me, since that's not in line with either Cruz's or Scalia's commitment to constitutionalism and the rule of law, but hey.)
The Senate had been (apparently) filibustering presidential appointments quite a bit more of late, both Democrats against Bush and Republicans against Obama, concluding in the Republican-devised "nuclear option" being used by the Democrats in 2013. Nominations by the president now only require a simple majority, not a supermajority, with the specific exception of Supreme Court nominees.
It would not be surprising at all to see the same sort of filibustering that was previously applied to both Obama and Bush's nominations be applied to whomever Obama nominates to the Supreme Court.
The "nuclear option" was named by Trent Lott (R-Miss.) in 2003 and first seriously threatened by majority leader Bill Frist (R-Tenn.) in 2005. It got actually invoked by the Democrats in 2013, in the reverse situation: the Democrats had a majority but not a supermajority of the Senate, and a Democratic president.
Seems like it usually takes a month or two for presidents to appoint someone new, and this might be affected by the supreme court's schedule, too.
The game theory of this is interesting, for instance, what if Obama nominates someone that is seen as more moderate than someone that Hillary or Sanders would nominate?
I will be shocked if Hillary nomination is more liberal than Obama's. Hillary is a conservative in Democrats clothing currently she is spouting liberal agenda to get the nomination once elected whe will go for conservative options under the umbrella of getting things done.
Hillary, in my opinion, is whatever she needs to be to get her way. My biggest concern with Hillary is that in order to win the high office, she'll have to embrace the progressive mantle. If so, her first appointment would likely be one that leans progressive, if only to ensure that she keeps the peace enough to be re-elected to a second term.
Well, considering that the Presidential election is this year... (the Republican) Congress will not confirm any nomination from President Obama before the election is over. So, I imagine that the appointment won't happen until after the election cycle. This makes the Congressional races a bit more interesting.
No. Look what happened when Bush was president, and the democrats stalled the election of supreme court justices. The republicans control 53 senate seats, and can refuse to confirm any justice till they know the outcome of the presidential election. If Trump wins, they'll stall until he takes office. If Sanders or Clinton wins, then they will grudgingly confirm who Obama chooses with some limits.
Another key point: the Democrats didn't say going into the nomination that no matter who Bush nominates they will reject. They were prepared to debate and decide on the nomination based on the merits of the nominee, not a blanket statement saying "we will not agree to anything, ever" - which is how the GOP has behaved during the Obama administration.
I said this above, but I'll repeat: if they do not reject, their Republican base will revolt and not vote in the upcoming election. They will absolutely be expected to reject and oppose until Obama is out of office. There are 2 sides in the political game, remember. And since supreme court nominations are so important, and this changes the balance, voters will demand they reject his nominees.
I don't know. Given the timetable and the fact that neither the Republican Party or voters can say who will win the presidential election, it seems like there would be room for a qualified, centrist candidate.
> if they do not reject, their Republican base will revolt and not vote in the upcoming election.
The upcoming election is a general election; they need to appeal to more than their base. In the past year the Republicans in Congress have been trying to shed their obstructionist, irresponsible reputation as the party that shuts down government, holds the solvency of the U.S. hostage, etc.
I wish them good luck with that, considering that the reputation of the GOP as uniquely obstructive in comparison with previous Congresses is purely a construction of media propaganda and is therefore not going to be overturned merely by their good behavior.
(A Democratic Senate slow-rolled or blocked innumerable Bush judicial nominees, some for several years, and the Democratic Congress shut down the government several times under Reagan. Both sides have the power to do these things, and have exercised them freely in the past, and somehow the world continued to turn.)
> the reputation of the GOP as uniquely obstructive in comparison with previous Congresses is purely a construction of media propaganda
I'm pretty sure that's not the case. For example, I know the recent GOP Senators used dramatically more fillibusters than anyone before. Also, I'm pretty that some basic fiscal issues like raising the debt limit weren't politicized before recently.
> somehow the world continued to turn
I think this is a dangerous belief. Actions, especially by the U.S. Senate, have serious consequences for millions to billions of people. The world merely continuing to turn is not a standard; there are serious problems in the world that need to be addressed well, or human welfare in the U.S. and elsewhere will suffer greatly.
> I think this is a dangerous belief. Actions, especially by the U.S. Senate, have serious consequences for millions to billions of people. The world merely continuing to turn is not a standard; there are serious problems in the world that need to be addressed well, or human welfare in the U.S. and elsewhere will suffer greatly.
Was this also the case when Democrats blocked George W. Bush's judicial nominees for years, or shut down the government half a dozen time under Reagan? You can't have it both ways.
I didn't ask for it both ways. However, as I said, I don't believe the earlier events rise to the level of what the GOP has done recently. If they block a Supreme Court appointment for 11 months it certainly will be unprecendented.
I'm merely speculating as to why the Judge who was quoted said what he said. But, yes, of course. 10 months is a long time to stall a nomination. I don't know of any precedent in this situation.
Hah, good point. But I guess the idea is that this is a major issue that will be in the spotlight. Tons of scrutiny and no way to cover what might be their obvious motives to avoid an appointment. The circumstances are extra-ordinary.
Typical is irrelevant, its a political process and the Republican majority in the Senate will be under strong pressure from within their own party's base to block any Obama nomination, both on ideological grounds and for strategic reasons (to preserve the nomination for their Presidential candidate, should they win.)
I wouldn't be surprised if there is no action until after the election (if a Democrat is elected), or the inauguration (if a Republican is elected.)
There's some merit to the argument that the voters should decide, too. It's not like this is a year where the outcome of the election is predictable; in fact, if anything, the GOP is on balance disfavored: call it a 50/50 shot at the Presidency, and a less than 50/50 shot at keeping the Senate, due to the 2016 map.
Presumably he's talking about selecting a replacement to the supreme court. Is this accurate? How long does this process typically take?