Get your popcorn: this morning President Obama is going to nominate a Supreme Court justice to replace Antonin Scalia. There are, as announced by both the New York times and CBS News, three nominees on the short list.
Among the finalists are the federal appellate judges Sri Srinivasan, Merrick B. Garland and Paul Watford.
My money is on Garland, who’s seen as the candidate least likely to be opposed by Republicans, as he’s a moderate. Srinivasan seems more liberal, was born in India, and would be the first Hindu Justice. Watford, like Garland, is a moderate who’s received support in the past by both parties.
It’s canny of Obama to nominate all three, since none fall on the overtly liberal side of the spectrum, making it hard for the Republicans to find a reason to oppose them. Nevertheless, Senate Republic leader Mitch McConnell is still vowing to oppose any nomination until after the election. Such is the obstructionist nature of a party in the process of shredding its credibility. Trump’s nomination (which now seems likely) would be its swan song.
A New York Times graphic shows that, since 1900, six of eight Supreme Court nominees proposed by an incumbent President during an election year were confirmed (a couple of these were to fill vacancies the year before election year, but so what? In all cases the vacancies would be filled by a President whose term was ending.
Apparently, the names of 6 potentials have been leaked:
http://www.vox.com/2016/3/12/11206662/obama-scalia-srinivasan-garland-watford
… leaked on March 12…
“…Such is the obstructionist nature of a party in the process of shredding its credibility”
The GOP shed its credibility with the nomination of Richard Nixon to be president and has never regained it.
Well, it retained enough credibility with enough people to ensure victories for Reagan (twice), Bush I and Bush II (twice), which rather undermines your argument. Perhaps you don’t find these presidents “credible” but tens of millions of Americans disagree with you.
I think by mentioning Reagan, who slept through cabinet meetings and made decisions with the help of Nancy’s astrologer, and especially Bush II who gave us the debacles in Afghanistan and Irak as well as the great recession, TARP, and bank bailouts you’ve made the case for me.
No I haven’t made your case. You may not have found these Republican presidents “credible”, but that’s your opinion only. Many millions of Americans found them entirely credible, and voted accordingly. Just as many millions will vote for Donald Trump if he wins the Republican nomination this time around.
I agree with Dave; it is easy enough for liberals to dismiss the GOP as not credible, but it isn’t just liberal opinions on credibility that decide elections.
The content of GOP is not what gives it so much power as just being the only alternative.
People want unicorns and fairies but what they get instead is a coin toss between inauspicious_1 vs. inauspicious_2.
I hope the choice is Sri Srinivasan. The precedent of an Asian on the bench would be quite a milestone (benchmark?). But, I think when it comes down to it the decision will be determined by the ugly and depressing politics of the moment.
I hope it isn’t because the person nominated will certainly not make it and probably will never have the chance again no matter who the next president is. I might rescind that comment if the Senate becomes a 60 member Democratic one but I consider that most unlikely.
It turns out it isn’t.
Using the New York Times graphic, by my count there have been about 22 instances of a senate hearing to replace a supreme court justice in the last year of a presidency.
Take away message? There’s absolutely no reason for the Senate not to move forward to replace Scalia.
It has been pointed out that Obama was among the senators who attempted to fillibuster the nomination of Scalia in ’08, and that event has been used to accuse Obama of having a double standard.
But that instance is very very different from this one. Most importantly the reasons for the fillibuster were based on opposition to that particular nominee, not on a blanket opposition to any nominee. So that was part of the due process. Also, they lacked the votes to secure the fillibuster and the nomination went through, and they knew that it would.
Pretty sure you’re thinking of Samuel Alito in 2006, Mark. Scalia was confirmed unanimously in 1986, while BHO was community organizing in Chitown.
I had just been thinking it would have been nice if he’d nominated Loretta Lynch..
She publicly stated that she’d asked her name to be removed from consideration. However, I agree she would’ve been good.
Hemant Mehta is reporting that its Garland. So either PCC g’s hunch is correct, or his hunch was a divine revelation from Ceiling Cat? 🙂
Obama just spent about 1/2 hour introducing his nominee to the court and talking about all the great things he has done. It seems he has picked, at least partly, to leave the republicans almost no choice but to move on this. I hope he has made the proper choice and not spent too much time bending over to these republicans.
I don’t think Garland as a choice is ‘bending over’, he seems to have earned a great deal of respect from both sides of the aisle. And given that he’s 63, even if it turns out to be a mistake, it won’t be a 30-year mistake like Scalia.
Sadly, it seems the republicans are going to do nothing on this nomination so as always with these people it is two steps back for everyone forward. In a forward leaning society Mitch and boys would be firewood.
McConnell et al will make it rough(er) on Republican senators and representatives running for (re-)election. Will be interesting to see how Senate Judiciary Committee Chair Grassley bears up under all the attention.
You were right, Jerry.
+1 Our PCCE is so smart!
The Republicans may yet succeed in blocking Obama’s nominee, but they’ve now put themselves between a rock and a hard place. An outright refusal to consider the nominee for the better part of a year, as Mitch McConnell is advocating, is completely unprecedented. It also flies in the face of the text, spirit, and logic of the constitution. (The Republican’s underlying justification that “the voters should have a say” on the nomination is even more ludicrous. Article III was written to remove judicial appointments from the process of electoral politics. The framers could have made Supreme Court justice an elective office; they did not.)
The smart move for the GOP would have been to proceed with confirmation-process-as-usual, then to dust-off their Robert’s Rules of Order and (in the Donald’s words) “delay, delay, delay.” Put some parliamentary-expert old-bull senator — someone in the mold of a Richard Russell or Robert Byrd of yore — to manage the process. Grind out the clock, like a football team protecting a fourth-quarter lead, a basketball team playing the four-corner offense. Make sure, by hook or crook, that the nominee doesn’t get confirmed for the first three months, then the next three, then the next three after that.
Everyone would have known it was pretextual bullshit, of course. But had they had the skill to pull it off, you’d at least have to have some grudging respect for them. But Mitch McConnell did feel they were up to it, so he up and announced from the get-go a flat refusal even to begin.
McConnell rightly feared that, once the confirmation process starts, the GOP is in danger of senators peeling off, especially in an election year where several senators are seeking to retain vulnerable Republican seats.
Now that McConnell has given up the game, if the Senate does deign to commence to confirming, the Republicans will be under more and more pressure to give the nominee a judiciary-committee vote, then a vote from the full senate. The Republicans will look increasingly foolish and obstructionist if they refuse to vote, or if they vote against the nominee without being able to articulate a plausible excuse, or (especially) if they exercise the nuclear option by filibustering the nomination — particularly given a moderate nominee previously confirmed overwhelmingly to a lower-court seat.
Doing so would also set a horrible and dangerous precedent. Next time a Republican president sends a supreme court nomination up to the Hill — assuming there’s something recognizably left of the Republican party after this November’s election — why should Senate Democrats ever act on that nomination, whether during a president’s final year, or in the year before that, or in any other year? We’re talking here about potential gridlock of biblical proportions.
Should be interesting to see this play out with the overlay of Donald Trump’s inexorable march through Cleveland to the GOP nomination and, thence, to the Fall Repub-apocalypse.
What would prevent the GOP, after Hillary is elected president, from blocking all her nominees as well? Why not wait ’till a republican president is elected or hell freezes over?
The trouble with that strategy is that Hillary might serve 2 terms and the likelihood is that there would be 3 vacancies in addition to the current one which would render the SCOTUS unable to rule on anything as 6 justices are required for a quorum.
Aha! GOP intransigence stopped by the need for a quorum. Those founding fathers come to the rescue yet again. (I’m still getting my Canadian citizenship renewed).
Nothing would prevent that except Senate elections.
To pile on what Ken and gluon said, its worth noting that the longest a party has ever held out against a nomination is something like 127 days. Individual Senators start thinking about their own reelection and popularity before even a year has passed. So its going to be really hard (literally unprecedented) for them just to stop Garland’s nomination, with 8 months to go before the election, let alone stopping someone Hilary nominates in her first year. I predict with confidence that Garland will either succeed or withdraw before November; he won’t still be ‘in process’ when the election happens.
So that brings us to the current Senate. IIRC, there are 33 Senators up for reelection this November and 6 of them are GOP senators who represent blue or purple states. The Democrats only need 5 GOPers to cross the aisle to have a majority. So if they get five of those vulnerable Senators, or a few of them plus a few others representing blue states that are up for reelection in 2018, they’ve got it.
Thanks for that glimmer of optimism. My ulcer is abating.
Note I’m not claiming he will get through the nomination process. Many times a nominee fails and withdraws, Bork being the last well-known case. I’m only saying that the GOP’s current “filibuster until election” strategy is very unlikely to work. If the GOP wants the next president to fill this seat, they will probably have to do it the ‘old fashioned way’ by mudslinging the candidate’s record and searching for skeletons in Gardland’s closet, forcing Garland to withdraw. Simply ‘not considering’ him isn’t going to get them to the 8-month-mark.
Except the current rules say you need 60 votes to confirm a Supreme, not 51. Even in your scenario, you don’t seem to predict 60 votes.
Sixty votes are required for cloture to end a filibuster. But what possible reason can any Republican senator offer for filibustering Judge Garland? The filibuster is an extraordinary remedy that has heretofore ever even been attempted where there was at least some colorable objection to a judicial nominee’s qualifications, character & fitness, or extremist ideology/ judicial philosophy. Obviously — to everyone! — none of those grounds apply to Judge Garland.
Instead, the Republicans’ only basis for filibustering Garland would be a blatant, naked, ahistorical, unconstitutional power grab — “we refuse to confirm your nominee isolely because we want to nominate one of our own.”
Think for a moment what kind of precedent that sets: by pure party-line vote, either party can at any time closedown a confirmation by opting to filibuster a clearly qualified supreme court nominee (save the very rare circumstance where the sitting president’s political party also enjoys a filibuster-proof 60+ supermajority in the senate). Such a precedent would threaten to permanently shutdown the judicial-confirmation process — and, perhaps, a lot of other senate business — forever.
I suspect there are senators, including some Republicans, who have too much respect for the senate as an institution, and for their ability to get any business done within that institution, to standby and let that happen. Such a ploy would also prove politically costly, as senators are repeatedly questioned, on the senate floor and in the media, day after day, about their reason for refusing to break the filibuster, and are left with the untenable option either of offering a completely cynical, transparently-obvious lie about Garland’s qualifications, or admitting to an ugly, unprecedented, unconstitutional power grab.
These are the Repubs who’ve been completely obstinate for 2 presidential terms now, to the point of shutting down the government. What makes you think they’ll care about their reputations now? Presumably the tea-party voters got them into office and are still out there steeping in hatred.
60 is to end a filibuster but also to confirm. Simple majority is the rule for confirmation for judges except Supreme Court ones. There you need 60 votes.
Supreme Court justices are confirmed by a straight majority vote. Justice Thomas was confirmed in the Senate by a vote of 52-48, Justice Alito by a vote of 58-42.
If confirmation required the same 60 vote supermajority as cloture, a Senate filibuster would never come into play in the confirmation process, as it did in Justice Alito’s.
The real risk for the Republicans is that its obdurate ploy now will prove so politically costly that Hillary will end up with a filibuster-proof 60+ supermajority of Democrats in the Senate — either this Fall, or in 2018, or 2020 — and then it will be Katy-bar-the-door, with the Hillary and the Dems being able to cram any supreme court nominee they want through the senate and onto the bench (as well as to cram any legislation they want through the Senate and over to the House).
That would be a welcome change from the current snarl.
Let us pray…
I so love your optimistic scenarios!
Here’s one amusing reply to your question.
Ha!
I think the GOP will keep this hard line until the primary is over, or at least locked up, then they will cave. While the primary is going on everyone is afraid of losing to their right. Once the primary is over, they will then have to consider the general voter.
I agree.
I hope you’re right. I can’t see a holdout actually helping the GOP in the general. Then again, it’s hard to predict those possessed by hate and ideology.
I sort of expect enough defections to allow Obama’s nominee through if Trump wins the nomination. The RNC has opposed him so they know they won’t have any chance of him listening to their nominations. He’s palled around with Democrats over the past few years and there’s still the suspicion that he’s nowhere near as right-wing as he campaigns he is. He’s a political wild card. Faced with all of those uncertainties and problems, I expect there’s a few GOP Senators who would actually prefer Garland over “a Trump-chosen candidate to be named later.”
On the other hand, I would expect them to consolidate around a filibuster and obstructionism if Kasich wins the nomination. He’s one of them and can be counted on to nominate someone they like. Cruz is an interesting case: he would almost certainly pick a conservative candidate that Senate republicans would like, but they hate the man. Should he get the nomination, I can almost imagine a few Senate republicans jumping ship and helping Obama to confirm Garland just to give Cruz the middle finger. I wouldn’t count on that – ‘strange bedfellows’ and all – but its interesting to think about as a possibility.
So overall, I think Garland has a good chance. I expect some of the Senators are doing a calculus in their head and coming to the conclusion that they would prefer Garland over the unnamed choice of 3-4 of the 5 current Presidential contenders (Clinton, Sanders, Trump, plus maybe Cruz).
I was amused by the local news outlet which had a guest stating that since Garland was Jewish, that would increase the diversity of the Court. I’m listening to this and wondering what she was smoking? Don’t we currently have 4/4 split between Catholics and Jews now?
The Hindu, there’s some diversity for you.
Right now it’s five Catholics and three Jews.
Great. Obama proposes another right-wing nominee for the Supreme Court…
Glad to see the nomination finally, and watch the Republicans continue to self-destruct. OTOH, it’s too bad we’re all so excited about a centrist; a bit more of a leftist is needed to balance the ideological tilt of the Court right now.
I was sad to read an article that suggested that Merrick’s emotionality in his acceptance speech was due to his pessimism about his chances in the current situation. Must be tough to finally get a boost toward the prize you’ve always wanted only to feel like a dispensable pawn in a political clusterfuck.