President Obama announced yesterday, in no uncertain terms, that he would go forward with the process of filling the vacancy on the Supreme Court produced by the death of Antonin Scalia. Here’s the video of Obama’s press conference yesterday, with the Scalia issue beginning at 7:53 and ending at 21:38. (Note Obama’s hip lack of a tie, very unusual for a President at a press conference. He also looks very tired!)
Meanwhile, Senate Republicans, who simply want to prevent the nomination of a liberal Justice, are claiming that they will block all of Obama’s nominees, asking for the nomination to be delayed until a new President takes office next year. That would mean the likelihood of 4:4 ties on decisions, in which case the lower court decision will stand. From watching the news, I see a consensus that Obama will go ahead and nominate someone who will be confirmed. But there’s at least one person who disagrees.
That person is one of my University colleagues, Charles Lipson, who, in a short RealClear Politics essay, expresses his view that this is all a political charade. His title is “The Supreme Court vacancy explained (in 250 words),” and I reproduce the piece in its entirety below. For the captious people, I’ve counted the words and there are actually 244, okay?
Our University webpage notes that “Charles Lipson is Professor of Political Science, specializing in international relations and international political history. He is Co-Director of the Program on International Politics, Economics, and Security (PIPES) and its workshop for graduate students.”
And here’s Lipson’s piece (his words are indented; mine are flush left):
No. 1: No nominee for the high court can get through the Senate before the election. No one.
The New York Times noted yesterday, with a nice historical graphic, that since 1900 the Senate has voted on eight Supreme Court nominees during an election year, and six were confirmed, though several of those were for seats that became empty the year before the election year. (The two nominees who didn’t make it were Abe Fortas and Homer Thornberry.) The last such Justice confirmed was Anthony Kennedy in 1988, but the Senate was then controlled by Democrats, and the seat had become vacant in 1987. Kennedy, a centrist and swing vote, was nominated to replace retiring Justice Lewis Powell. Ronald Reagan, who was President then, nominated two justices before Kennedy: Robert Bork, whom the Senate rejected, and Douglas Ginsburg, who withdrew his name when it was revealed (horrors!) that he had smoked marijuana.
Go to the Times site and look in the yellow box on the right to see the election-year Court nominees. The Times adds this: “The Senate has never taken more than 125 days to vote on a successor from the time of nomination; on average, a nominee has been confirmed, rejected or withdrawn within 25 days. When Justice Antonin Scalia died, 342 days remained in President Obama’s term.”
On to the rest of Lipson’s piece:
No. 2: President Obama and the Democratic candidates for president know that. So do Republicans. All God’s children know it.
No. 3: Since the nominee will not be approved, Obama will use the opportunity to advance other goals. He will propose someone who burnishes his own progressive credentials and shows why control of the court depends on the November election. Putting Senate Republicans in an awkward position would be a nice bonus. But the target is November.
I’m not sure that this action will help elect a Democratic candidate. After all, why wouldn’t Republicans, equally cognizant of the stakes for the Court, be just as motivated to elect their own candidate? All this can do is highlight the obtuseness of Senate Republicans, and their perennial desire to block anything Obama wants—just because it comes from Obama. But we all know that already.
No. 4: Obama will nominate someone whose demographic characteristics help in the contests for president and U.S. Senate. That is not just his main criterion. It is his only one. The candidate could be from a purple state. Or a Latino. Or openly gay. Having finished law school would be a plus.
This may well be the case. The problem is that anyone who helps the Democrats will also help the Republicans. For this tactic to work, the President has to nominate someone who will either swing Republican voters to the Democratic side (unlikely in my view), or, more likely, nominate someone who will bring to the polls a voting bloc that is large but historically disinclined to vote. And that would be Hispanics, who constitute 17% of U.S. voters but who, in 2012, turned out only 48% of eligible voters at the polls. My guess, then, is that if Obama is going this route, he’ll nominate a Hispanic jurist.
No. 5: The proposed candidate will not receive a Senate vote before the election or in the lame-duck session. If Mitch McConnell even considered it, he would become the former majority leader.
No. 6: Democrats and Republicans will both use the issue to show voters why it is crucial to elect them — and not the other party. Democrats will add that this again shows we have a “do nothing” Congress. Republicans will say it shows we have “do too much” judges.
No. 7: All the rest is political theater, full of sound and fury, signifying nothing.
As always, readers’ comments are welcome. Is Lipson right?
UPDATE: Reader Barry sent an excerpt of a piece written in 1970 by Mitch McConnell (now the Senate majority leader saying he’ll block Obama’s nominees). I guess he changed his mind!:
h/t: Blue
Lipton might be right. Or not. Some Republican senators are already backing up from the insane blanket obstruction position.
I disagree with this analysis. I think Obama will nominate a moderate who is so eminently qualified that it will be a major embarrassment for the Republicans to reject or ignore — someone like Sri Srinivasan, who was unanimously confirmed to the DC Circuit Court of Appeals.
I agree with you, Stephen, except that I have somewhat less confidence that Republicans can be embarrassed into performing their constitutional duty.
I would love to find out I am overly cynical about them.
I agree.
I hope so, and then I hope they confirm that person.
The McConnell quote was from long before Bork, right? The game changed with Bork.
That’s what I’d do. And I think the Republicans would be smart to approve him. If they makes this an election issue, there’s no guarantee that come January they’ll have the Presidency, or the votes in the Senate for their preferred choice.
I also disagree with the analysis. I believe from other reading that the longest the Senate has taken with a nomination is something like 130 days – 5 months. We are more than 5 months away from the election. Thus while the GOP may want with all their heart to stall nominations until after the election, they would have to stall longer than any other senate has stalled in the history of the US government. That includes post-civil war stalls, depression-era stalls, and so on.
I frankly don’t think they have the competence or unification to do it. A third of the Senate is also up for reelection this year, and just like with the budget, the moment some incumbent GOP senators think their odds of reelection go down if they balk longer, they’ll stop balking. And that will happen, because while the American public likes a principled stand, we also tend to dislike and despise people who take it to ridiculous extremes and waste our tax dollars and such doing it.
That was my immediate reaction too. Why (and how) would this election become an outlier with that much?
But I didn’t know how the US political game is played, so thanks for the details!
I would say Lipson is nearly all political theater himself, and “all g*d’s children know it.” Anyone can speculate – that is what political science folks due. They also become political pundits, one of the fastest growing careers on the planet.
Why could he not save the 244 words of speculation and just say – most likely the new president will also be a democrat so are we not getting all worked up over nothing?
The more important topic for any thinking government officials should be why is this so damned important in the first place. If they truly wanted to properly interpret the constitution or consider the intent of the founding fathers, the almost worthless congress would be installing some new laws to dismantle the excessive power of the court. That is the heart of the issue that Lipson should be addressing with all of his expertise.
Given Republican Senate majorities, Republicans will not confirm any Supreme Court nominee put forth by a Democratic president. The calculation goes like this: Even though the current 4-4 tie slightly favors liberal decisions, there’s a 2/3 chance that the next vacancy will be a liberal justice. (Kennedy is only liberal when it comes to gay rights).
That will give the court a 4-3 conservative majority. Republicans will take that all day and use it to “clean up” all those 4-4 decisions. The next two likely vacancies leave the court with a 3-2 conservative majority.
This is something that Republicans will campaign on and that their base supports.
Except that 6 voting justices are required to constitute a quorum. Thus a 3 to 2 advantage either way is useless.
That’s interesting. However, I don’t think that the number making a quorum is a Constitutional requirement. Rather, it’s probably a rule passed by the Court itself to govern its own proceedings. As such, it can be changed as needed.
In addition, there is no Constitutional requirement for any particular number of Supreme Court justices.
Not that totally hobbling the Court would not be a goal of Republicans in any case. They’d probably be happy with Alito alone.
Lipson’s analysis looks pretty good. The vacant seat will definitely be hostage to partisan politics until a Democrat or Republican wins the White House and carries a sufficient number of Senatorial candidates with him/her to break the deadlock. But what would happen if Clinton became POTUS and the Senate remained Republican?
In the meantime China, which doesn’t have to bother with minor problems like this, is building the world’s largest radio telescope array.
Indeed, what is going on is political theater. There is absolutely no way than an Obama nominee will be confirmed in a Republican controlled Senate where 60 votes are required. The Republicans’ big mistake has been to declare that the nominee will not even get a hearing. Politically, they should go through the charade of holding hearings and then reject the nominee through a vote. In this way, they could not be accused of evading the constitutional processes, which is what the Democrats are doing now. They could easily come up with some bogus reason for rejecting the nominee, which would satisfy the party’s base. The Democrats are being helped by the Republicans’ foolish blunder, but to what extent is unknown.
Knowing that his nominee will not be confirmed, Obama should nominate a person who is only mildly liberal and NOT a minority. Why not a minority? Because he could not be accused of pushing a radical, leftist agenda, even if the minority person is actually a centrist. Instead, Obama will make the political argument that the Republicans are reckless in rejecting somebody so moderate and so white (this would be implied, not actually said). His political objective would be to try to peel off some relatively moderate Republicans, who are disgusted that their party would not even consider a person so middle-of-the-road. These moderates would also be concerned that if the Democrats win the presidency then Hillary or Bernie would nominate a person much more liberal and who is some kind of minority. I think that this strategy would be politically more beneficial to the Democrats than would be the case if Obama nominated a very liberal minority. In other words, I think the Democrats would gain more votes by Obama nominating a white moderate than by him nominating a liberal minority.
Of course, if Obama actually had a chance of getting his nominee confirmed, he would pick a very different kind of person.
Obama’s opposition sees The Battle of Carthage as letting the enemy off too easy (should have used way more salt. and possibly Siricha).
We need a stronger word than obstructionist. Destructionist springs to mind. But even that seems a little passive compared to guys like Ted Cruz. Destruction at least has a putative end point. Not far enough for god’s appointed.
“Desperate” is the word I use.
The world is inexorably abandoning them and there is nothing they can do to stop it. All my life I have watched the GOP feverishly wage culture wars, and all my life I have, with a bit of surprise, watched them lose and lose and lose. Tactically they have slowed things down, but that’s it. The majority of the country opposes their social platform, and nothing they do, or can do, is going to change that. The most they can hope to do is to throw wrenches into the machinery and hope that God finally awakens from his slumber to answer their prayers. Even the religious, though, realize in their gut that gods don’t defend their temples.
They are desperate, and that’s why they look and act in such over-the-top fashion. Backs to the wall.. scared… dangerous.
spot on. with your suggestion, i have taken the liberty of (apparently) re-coining the term “desperationist” at urbandictionary.com (awaiting review). to wit:
desperationist
A pathologically stupid, self-defeatingly intransigent person, e.g., any of the current GOP, who oppose absolutely everything to do with personal freedom, liberty, progress, and basic decency in absolutely everything, and that goes triple-double for anything Obama does.
Also, the name of a play by Olive Conway from 1933, “The Desperationist.”
“Senate Majority Leader Mitch McConnell(R) is often accused of being an obstructionist. He is actually more of a desperationist, and he looks like a studious, but not particularly bright, turtle.”
Superb comment there, Mr. Spring (at #7, if this doesn’t show up in the right place).
Obama was speaking at the ASEAN summit which is being held in California. Tradition dictates that all the head of states attending get together dressed the same way (selected by the host country) and pose for a picture. Obama chose California casual. Some of the past choices have been much more fury, particularly Malaysia, Indonesia, et al.
https://www.google.com/search?q=asean+summit&source=lnms&tbm=isch&sa=X&ved=0ahUKEwi7s773mf_KAhVFbj4KHWwZDHQQ_AUICCgC&biw=1024&bih=653
Interesting. I couldn’t find a photo that illustrate this years California casual choice,but this video makes it very clear that all the leaders are wearing this:
Obama Greats ASEAN leaders
Yes, this is a fun fact to know! And I can’t believe I watched that whole video. It seemed to get more interesting with each new arrival; wish I’d recognized more of the flags! The two non-changing flag holders must have been exhausted by the end of the ceremonies.
And I think there were only 2, possibly 3, women among all the entourages.
I didn’t watch the whole thing, but I watched quite a lot of it. It was kind of calming and mesmerizing. I kept wondering if the business casual attire might have been a mental challenge for some of them. If you come from a place where businesses culture is more uptight than in the US this might just feel slouchy rather than “in local costume”.
OTOH, there’s always a chance that a bunch of them were delighted to go tieless.
This way there’s nothing that needs to be loosened when they get down to work. 😀 They’d still need to doff their jackets to roll up their sleeves, though.
That explains it. I was wondering why he looked so unprofessional. It jumped out at me first thing without even hitting play on the video. I know neck ties are a bit of an anachronism, but for better or worse, they’re still a part of our culture, and the president should look, well, presidential.
Thomas Jefferson used to receive visitors to the official residence in a dressing gown.
This is almost too trivial to disagree about, but just for the heck of it–I disagree with you. 😉
Keep in mind that Charles Lipson is a Republican – he has stated this. He is opposed to UofC hosting the Obama library.
http://www.chicagomag.com/Chicago-Magazine/Felsenthal-Files/July-2012/Charles-Lipson-on-the-Obama-Library-and-Being-a-Republican-at-the-U-of-C/
Two disappointing bits of info!
You should adopt the British approach. Senior judges are all a bunch of old chaps from upper-middle class backgrounds and nobody has the faintest idea how they get appointed to their jobs.
Sorted.
Sounds good. Actually, there are many here who would like elections for judges and many states do it that way. It is a very poor system to have the public electing judges, first being the public does not know beans about one judge vs another and the public has no qualifications for doing such a thing. It has created a lot of really crazy judges at state level, such as the one who heads the supreme court of Alabama at the present time.
At the Supreme federal court level the real problem is the lazy and poor congress we have that has voluntarily given much of its power away to the court and to the executive. That has left it almost useless to do many things except cry and complain at the other two branches of government.
If we just stopped and think for about 1 minute, does it make sense that judges should be deciding things like who can get married or if anyone can get an abortion. Of course not. These things and many others should be handled by the congress, through passing of laws. They have nothing to do with the constitution. The court should only be looking at matters affecting constitutionality. Who can get married and at what age does not belong to a judge – that is just stupid. Now, if a legislature attempted to pass a law that said these people cannot get married, then the court should be allowed to step in and correct that.
But that’s what happened. Legislators decided some people can get married and some people can’t. Women can or cannot have abortions. That’s when courts stepped in and ruled on whether such laws were constitutional or not. I don’t understand your complaint, or your claim that courts have “excessive power.”
I think you are confusing state and federal, which is easy to do. If the federal legislature has made law (any law) on abortion, please let me know. What you see are states doing various versions until one day, it goes to the court. The court takes the case and then decides (Roe v Wade). That becomes the law. Did we see anything from the Congress – not that I know?
As things were going through the state legislatures and into their courts – when it got up to being offered to the supreme court, the action should have been – Federal Legislature, take action. This is your job, so do something. Then if the people do not like it, vote for different people.
When you leave all this crap up to the court, nobody is happy and no one can do anything about it except sit here and cry about the supreme court.
Look up the Hyde Amendment for federal legislation regarding abortion.
Well, the Supreme Court is the ultimate arbiter on whether state laws are constitutional or not, so I fail to see the distinction. And the federal legislature did pass laws on marriage, DOMA, for instance, which the SC ruled on. I’m still not clear on your complaint. You want Congress to pass laws, then, if necessary, for the Court to rule on constitutionality. But this is exactly what happens.
I would speak to both of these -abortion & marriage as follows:
The Hyde Amendment was not even permanent law, I think they called it a rider. Attempted to restrict federal funding except in the case of rape and incest. But anyway – cutting off federal funds (which congress does have authority to do) is not making law regarding abortion in whole.
DOMA (you are correct, was an effort to define what marriage is and thereby establishing that gays cannot get married. This would be and was in the courts jurisdiction because of the restriction. The constitutionality comes into play because of the 14th amendment.
You still haven’t explained your confusing claim that, “The court should only be looking at matters affecting constitutionality.” That is exactly what the SC does. That’s what they did in Roe, in DOMA, and in every other case they decide. You might not agree with their interpretation all the time, but the Constitution is the basis for every ruling. And to say that Congress should be, “installing some new laws to dismantle the excessive power of the court,” makes no sense whatsoever. The courts have exactly the power the Constitution grants them, what possible laws could Congress pass to change that? Like it or not, the Constitution is the law of the land.
Some people seem to be totally unaware of the inequities of state laws on issues of marriage and abortion. These inequities are present in many other state laws such as those affecting other individual rights and properties. Divorce laws, what happens to the children, how properties are divided, what financial responsibility the husband has for the wife and children after divorce, etc., are determined at the state level. Inheritance laws are made at the state level. Be very careful where you choose to live. Research the laws if you can.
Unless things have changed since I last looked at this issue, for example, after the death of the husband/father, widows in Texas inherit an equal percentage with the children. (One wife, 4 kids; she gets 1/5 share of the estate. The more kids, the less she gets). There was a case in which a woman possessing a large farm married. After marriage, the property was owned by the husband only (not the wife only, or husband and wife equally). When the husband died,the farm would have been divided among the woman and her children. To get return it to her sole ownership, she had to buy it back.
It might be more equitable for such decisions to be made at the federal level, one set of laws applicable to all individuals in all states. But, that won’t happen any time soon. States rights vs. federal rights has never ceased being fought over and over again since the origin of our country.
I think you are correct on the mess we have with all the states doing their own thing. Even the ridiculous driver’s license system, handled in each of 50 states.
Sovereignty divided between the fed and state was one of the two basic issues that had Madison believing he had lost the battle at the convention in 1787. Equal representation in the house and Senate was the other failure. He later changed his mind, at least on the first but he was right the first time.
The sharing of sovereignty is one of our big problems that has never been solved in this country and may never be. And by the way, Madison argued at the time that absolute power must be with the federal and it should be able to reject any state law. He lost.
If the construction of states were made on some principle it might seem slightly less perverse. As it is, state boundaries are mostly historical accidents. Why should the group of people falling in the completely arbitrary boundaries of Wyoming, for example, have equal senate representation with the 75x as many people living in California? Why should that small group of people get to make up their own laws, but the equally sized group of people who live in El Paso, TX not? It’s difficult to imagine a principle that would justify this wholly arbitrary division of power.
On paper I suppose I like the idea of divided power as a hedge against centralized oppression. Historically, though, the worst human abuses have come at the hands of the states, with the centralized power being a check on state abuses more than states being a check on central authority abuses. So I don’t think it plays out like it does on paper.
Sites anyone have a link to the full article by McConnell mentioned in the Update? Thanks
*Does anyone…
For crying out loud, autocorrect!
This link will go to a PDF, which downloads the article from the Kentucky Law Journal.
https://t.co/Ipx2Imct6x
Thank you
Yes, but don’t the Democrats have a bigger turnout problem than the GOP? So I would think that anything that motivates both parties to turn out will tend to favor Democrats, because the GOP is closer to turnout saturation.
Yes, that is my thought as well.
Some on the left seems to be rather silly about voting. Some complain that they didn’t get what they wanted or Obama didn’t do what he said (because congress blocked him) so they refuse to vote, and Republicans gained making the possibility of the left getting what they want even worse.
Some believe both parties are the same, all politicians are the same, but they most definitely are not.
Mann & Ornstein:
Today’s Republican Party has little in common even with Ronald Reagan’s GOP, or with earlier versions that believed in government. Instead it has become “an insurgent outlier — ideologically extreme; contemptuous of the inherited social and economic policy regime; scornful of compromise; unpersuaded by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its political opposition . . . all but declaring war on the government.”
“It’s Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism” by Thomas E. Mann & Norman J. Ornstein
There’s also the fact that the Democratic voting block includes a lot of young and poor people who are not always that good about turning out to vote even when they believe in the candidates.
Often because they can’t fit a trip to the polls into their work schedule, or when they show up they have to stand outside in the dark and cold for an hour or so before they get into the polling site, or they can’t both pick up their kids from daycare and get to the polls, so they have to choose one or the other, or….
All of this designed by the Republicans, of course.
Does this mean that the Senate will block all nominees until we get a Republican president? Given the current slate of candidates, it seems likely that the next president will be a Democrat. Could be a long wait.
The Democrats have a good chance of winning back the Senate in November.
Music to my ears!
Unfortunately, speculation about the senatorial seats up for grabs diminishes in a presidential election year.
Nah… they’ll just block the nomination until their investigation of Scalia’s suspicious death is completed. Shouldn’t take much longer than the Bengazi committee to wrap up (2 years and counting).
There won’t be an investigation. Scalia’s family have refused permission for an autopsy, which they can do in Texas.
They probably don’t want all the medical conditions he suffered from to be public knowledge, and who can blame them. It does mean though that the right-wing conspiracy machine will go into overdrive.
I suppose the far-left could also make up some stuff about what his medical conditions were. Glenn Greenwald and others made some pretty nasty tweets about Scalia’s death, and some of them aren’t above inventing stuff. Could be a job for CJW.
Don’t be silly. They will not be deterred in the slightest by the lack of an autopsy.
A congressional investigative committee doesn’t need evidence since the purpose is not actually finding things out.
(I’m saying all of this in jest, BTW… I hope).
Ha ha! Yes, good point, ‘Murica!
As a conservative, I don’t approve of the position of the Republican party at all on this question. I am sick and tired of both parties only paying attention to the Constitution when it works out for them. The President clearly has the right, and I’d say the duty, to make a nomination, and he should.
I don’t like the Constitutional requirement that judges may (if they wish) serve for life. If I had my way they’d face reconfirmation every 10 years or so (out of phase with Presidential elections). The risk of lifetime terms is that the courts get populated with superannuated geezers, increasing out of touch with the Zeitgeist and in declining physical and mental health. Rehnquist, in particular, served far longer than his health should have permitted.
They should certainly have term limits and age limits. Lifetime is insane and I would certainly say the same thing about the Congress. They put limits on the Executive office after FDR but did they do anything about themselves…hell no. They almost carry some of these guys in to vote.
I would go further. Judicial appointments on the federal level should be limited to 1 non-renewable 10 year term. A lifetime appointment is a recipe for disaster; consider the we now know that Scalia was probably on the borderline of senility with numerous health problems.
Back when this was written in the Constitution, life expectancy was around 40 or so. They obviously didn’t have the foresight to imagine a life expectancy of 80 in the 21st century. I wonder if that was a reason for the seemingly undemocratic lifetime term. Similar to how they didn’t imagine AK47s when writing the 2nd Amendment.
Except that short life expectancy was largely a function of large numbers of people dying as children from disease. Washington died fairly young (67) but Adams lived to 90, Jefferson 83, Madison 85. Age of death was pretty high if you made it into adulthood.
Kind of makes about as much sense as the religious rules made by guys thousands of years ago but we would still pay attention today.
The constitution is in need of a large overhaul, but some people think it was somehow created by g*d as well.
I think the main justification for lifetime judicial terms, if not the only one, is to decouple the judiciary from day-to-day politics. In practice, the opposite has happened, with justices hanging on to the bitter end in fear that their seat will be taken over by an ideological opponent (e.g. Rehnquist), or in Bader’s case being encouraged to retire before an ideologically opposed President can fill the seat.
BTW, my favorite Supreme of recent times is Souter. Thought to be a conservative, he was nominated by George H. W. Bush (mainly chosen because of his relative obscurity and lack of a paper trail — to avoid a confirmation fight after Bork). He turned out to be surprisingly liberal, voting to uphold Roe v. Wade and ruling against prayer in high school. He retired gracefully.
Bader = Ginsberg
“In practice, the opposite has happened…”
Yes. It’s my vague impression as an inattentive non-USAian that a number of controversial issues have been decided on fairly predictable 5-4 lines, which tends to undermine confidence in the court as an impartial judicial body confidently applying the constitution.
Article III of the Constitution was written to ensure that the federal judiciary would be immune from the nation’s political processes. The framers wanted federal judges to be as free as possible from all political concerns — free, that is, to make decisions, however unpopular they may be, solely on the basis of the constitution and their consciences, without concern for political retaliation. (Article III even prohibits congress from lowering a federal judge’s salary while he or she remains in office.)
Judges cannot exercise such freedom if they are subject to election, or recall campaigns, or periodic reconfirmation. Imagine how political a reconfirmation proceeding would have become for, say, Justice Harry Blackmun when he would have first come up for reconfirmation after writing Roe v. Wade, or for Justice Kennedy after the more recent Windsor and Obergefell same-sex marriage cases, or for Chief Justice Earl Warren in the wake of the 1954 Brown v. Board of Education school desegregation case.
Interest groups would have brought tremendous pressure on senators to vote against them; some senators would no doubt have campaigned on a platform of voting against a those judges. In response, judges, or interest groups favoring them, would be inclined to hire public relations firm to burnish the judge’s media image in anticipation of the hearings. One need only look at the experience of states with judicial election or recall systems. In Iowa, for example, several judges were voted off the state supreme court as punishment for joining an opinion legalizing same-sex marriage.
A lifetime appointment system is not perfect. It tends to relegate judges to the ivory tower, isolating them from the needs and cares of common people. But it beats the hell out of any alternative.
“Interest groups would have brought tremendous pressure on senators to vote against them; some senators would no doubt have campaigned on a platform of voting against a those judges.”
In other words, just like the confirmation process now.
I dislike the spectacle of infirm, mentally incompetent judges hanging on until the end because they feel they have to, very often for political motives.
I’m not for judicial recall. Impeachment is a Constitutional option, but that bar is too high. Facing a reconfirmation every decade or so seems reasonable to me. For every case of a liberal judge who would be in danger of losing a reconfirmation, I can cite a conservative in the same position.
There’s no comparing a reconfirmation proceeding with an initial confirmation hearing. Unlike the latter, a reconfirmation hearing would be a referendum on the judge’s voting record over the preceding 10 years. Since it would be scheduled years in advance, the political process would inevitably gear up for it, with senators campaigning for office on the express promise to get rid of such-and-such justice(s).
What standard, if any, would you propose that senators use to decide whether or not to reconfirm — simply whether they agree with the outcome of the judge’s decisions and his or her judicial philosophy? So if 51 (or, in the event of filibuster, 60) senators don’t like the justice’s decisions — or if they’d simply rather replace that justice with one aligned with their own political party — the sitting justice gets the heave-ho? Senate voting would of course break down along purely partisan lines.
Whether or not you think that would make for wise system, it is plainly not the nonpolitical judiciary envisaged by the constitution’s framers.
Exactly!
I agree with you, Ken. And I’m bothered by the ageism as well. While the likelihood of certain ailments increases with age, they are not inevitable.
One strategy might be to call their bluff and make or threaten a recess appointment. Plenty of precedence. Eisenhower did so three times: Warren, Brennan and Stewart.
Obstructing the nomination of a new justice would be a disgrace, only imaginable in a degenerate class of politician which puts the welfare of the nation far behind the special interests of his or her corporate owners. So, yeah, of course the Republicans will do this.
Yup…modern Republicans are an easy group to predict. Just think what a complete asshole would do and there you have it.
My thinking is the opposite. Obama will nominate someone very moderate that the Senate has already approved by wide margins, e.g., Srinivasan or Lynch. This puts the Senate Republicans in the toughest possible spot, and I still think there’s a chance that there are enough rational Repubs that see the reality of the situation and join the Dems to make 60 and confirm, knowing that things are only likely to get *worse* after the election. Also, Obama is wise enough, and I think principled enough, to not to blow a nomination just to serve some tactical purpose in the upcoming election (regional, interest group, etc.) Finally, he can leave it to Hillary to go more progressive when the next nomination is needed.
Lipson wrote ‘Republicans will say it shows we have “do too much” judges.’
Well, there’s no accounting for what Republicans might do these days, but that would be a complete non sequitur. Why would Republican senators refusing to confirm a nominee in a president’s final year reflect on judges in any way?
I suppose Republicans might just assert, without evidence, that judges “do too much”, and that therefore it’s good to delay appointing them, and wait until just after presidential/senatorial elections so that they can all run on what kind of judge is best. But that’s the other way around for cause and effect.
“Note Obama’s hip lack of a tie, very unusual for a President at a press conference”
That’s why I decided not to be President. I really couldn’t stand wearing a suit all the time, particularly in the humid heat. Wearing a suit with sweat dripping down on the inside is just miserable.
I’d wear a swim suit. That’d be a real game changer.
Your gain is our loss, Scott! Where is your patriotism?!
In regards to the actual topic, whoever is nominated by President Obama will not be approved by the congress. It matters not how
qualified the person is, whether Democrat or Republican, male or female, Inuit or of European descent, black, brown, white or striped. The person will not be approved because selected by a Democratic, black President Obama.
President Obama faces an uphill battle, against tough odds, to get his nominee confirmed by the senate before leaving office. But it is not nearly the slam dunk against that Lipson claims it to be.
It is unprecedented for the party controlling the senate to flat out refuse to act on a president’s SCOTUS nomination. If this senate does so here, holding the nomination hostage for month after month, public opinion may mount against such obstructionist tactics. Then, the GOP — which is fracturing along its fault lines before our eyes in the 2016 presidential campaign — may find its resolve faltering, especially if this becomes a hot-button campaign issue damaging Republican chances in contested elections this Fall. The chairman of the senate judiciary committee, Iowa Sen. Chuck Grassley, has already begun waffling on whether to give an Obama nominee a hearing before the committee.
A lot, of course, depends upon who the nominee turns out to be. If Obama sends up the hill the name of a moderate minority nominee (say, Sri Srinivasan) who was unanimously confirmed not long ago by the senate for a seat on the federal appellate bench, it would be politically awkward for the Republicans to explain away their refusal to move forward on the nomination. And if a nominee successfully makes it out of the judiciary committee, it will grow increasingly difficult for Republicans to justify denying him or her a vote before the full senate, whether by refusing to bring the matter to the senate floor or by filibuster.
(The other way Obama could pressure the Republicans to act would be by nominating a sitting or former senator. The leading candidate here seems to be Minnesota Sen. Amy Klobuchar, herself a member of the senate judiciary committee. It would be a huge breach of historical protocol for the senate to refuse to act on the nomination of such a colleague. Klobuchar would bring the added benefit of allowing Minnesota’s Democratic governor to name the replacement to complete her the two years left on her term, which could be crucial in determining the majority party in next year’s senate.)
If the Republicans follow through with their obstructionist strategy, it is not beyond the pale that Barack might eventually make a recess appointment, who would then take a SCOTUS seat immediately and serve out the rest of the year (and who would then be subject to re-nomination and confirmation by the senate beginning in its new term next January). Before taking such a drastic action, however, Obama would want to have the winds of public opinion firmly at his back by giving every impression of having acted reasonably, by demonstrating that he has proceeded strictly according to Hoyle, and that it is the Republicans who have unconstitutionally stymied him at every turn.
One final consideration is that there may be some hesitation by the most qualified candidates to accept a nomination under such circumstances. Who wants to undergo the ordeal of senate vetting, including Republican oppo-research, and a potentially arduous hearing, if the odds are firmly against the nominee’s ultimate confirmation. I’d expect, at least, that such a nominee would want an assurance from Bernie and Hillary that, if the senate denies him or her a hearing, he or she will be renominated come January if the Democratic candidate wins the presidential election. (Such an assurance could come in the form of a ringing public endorsement from both candidates that Obama’s nominee is the best possible person to take a seat on the Court).
I wouldn’t put too much stock in historical protocol at this point. I think the only calculus that will matter is cold hard political reality in the elections. Every other nicety will be crushed under foot without a thought.
The greatest political transformation we will see in the next twenty years (cf. Paul Krugman) will be the GOP. They will either sink themselves so badly they will vanish or slowly figure out someway to emerge from the muck they are wallowing and preserve their sanity and self-respect.
I’ve been wondering what on earth the Koch brothers are up to these days, with the Republican race being such a clusterfuck.
Mitch McConnell’s insistence that this Thurmond rule was invalid back in 1970 is hilarious. John Oliver’s great return show last Sunday featured the full clip of it, and it’s well worth seeing.
Will anyone accept the nomination knowing the GOP is very unlikely to confirm? Who would go through that process for nothing?
Chuck Schumer 2016 : “Sen. Chuck Schumer (D-N.Y.) is criticizing Senate Majority leader Mitch McConnell for saying the Senate should not move forward with a Supreme Court nominee during President Obama’s remaining months in office.”
Chuck Schumer 2007: ”
New York Sen. Charles E. Schumer, a powerful member of the Democratic leadership, said Friday the Senate should not confirm another U.S. Supreme Court nominee under President Bush “except in extraordinary circumstances.”
“We should reverse the presumption of confirmation,” Schumer told the American Constitution Society convention in Washington. “The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito.”
Read more: http://www.politico.com/story/2007/07/schumer-to-fight-new-bush-high-court-picks-005146#ixzz40STmg81v
Republicans, of course are the mirror image of this.
Fun times in DC
They can trade anecdotes like this all day long (McConnell was for executive deference in the past, Schumer was for senate intransigence in the past). Both parties are opportunistic when it suits them. The question is which charge will stick in the public mind. And that is where the GOP government shutdowns will come back to cost the GOP…they made a spectacle of being obstructionist and so they start out with the presumptive obstructionist label (in the public mind… I think polls bear this out). So when the talking heads go on TV to talk about all of this the McConnell inconsistency will stick while the Schumer one will not.
Among engaged partisans none of this matters, of course, both sides will believe the worst of the other. But among the less party invested voters I think the GOP comes into this fight with a reputation that will work against them.
Does anyone know: if Obama nominates someone, and that person is rejected, could the next President re-nominate the same person?
If not, why not?
Sure. John Tyler holds the record, in the 1840s, with nine nominations (eight rejected) of five men, four of them being nominated twice.
Thanks. 🙂
I hope Lipson is right, for another possibility is that Obama will eventually attempt to nominate someone acceptable to the Republicans as a compromise, and that will be a loss for the American people.
I was astonished when McConnell jumped on this so fast. Every time Congressional Republicans have chosen to engage in a showdown with this president, they’ve been humiliated. Andrew Sullivan was right. They really are Wile E. Coyote.
Here is McConnell’s original article.
https://www.gpo.gov/fdsys/pkg/GPO-CHRG-REHNQUIST/pdf/GPO-CHRG-REHNQUIST-4-23-1.pdf
Why don’t they wait until the New President be it Sanders or Clinton is in Office, then nominate Obama, after all he’s a Constitutional Law Professor, that would really blow the Repugs minds.