This idea of the imperial judiciary — that the Supreme Court had become too strong, too central, too powerful — animated much of Scalia’s justice philosophy and writing…
But on the day of his death, the Supreme Court and its role could not be more exalted…
The path forward: Obama will offer up a nominee; the Republicans in the Senate will refuse to move the nomination forward; and the politics of the Supreme Court could take center stage in a way no one alive today has ever seen, in the midst of an already unconventional presidential primary, at a time when social media rapidly changes the way people, interest groups, and grassroots movements interact with politics.
Supreme Court Justice Antonin Scalia’s death Saturday highlighted the stakes not just of the presidential campaign but of the razor-close battle for control of the Senate, where Republicans’ 54-seat majority is in serious danger in 2016. The Court vacancy won’t remake the political map, but it will intensify the fight over it.
GOP Senate Majority Leader Mitch McConnell announced Saturday night that the Supreme Court vacancy “should not be filled until we have a new president,” a call that presidential candidates like Donald Trump, Ted Cruz, and Marco Rubio joined. But while McConnell’s tack might take the decision out of President Barack Obama’s hands, it may also hand consent of the new appointment to a new Democratic Senate next year…
Republicans are already fighting to defend seats in six states Obama carried twice: Florida, Illinois, New Hampshire, Pennsylvania, Ohio and Wisconsin. Democrats not only have fewer seats to defend, but the ones that are most at risk come from Colorado and Nevada, territory that has leaned Democratic in recent years…
The purple hue of those battleground states — compared to the 2014 Senate map, which was heavier on red states — may split the priorities of GOP senators preparing for tough November races from those worried about primaries earlier in 2016.
It is “standard practice” to not confirm nominations to the Supreme Court in an election year, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) said Saturday, following news of the death of Justice Antonin Scalia.
As a result, he said the Senate shouldn’t confirm President Obama’s nominee to replace Scalia.
“The fact of the matter is that it’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year,” Grassley said.
“Given the huge divide in the country, and the fact that this president, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda, it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.”
“Senator McConnell is right that the American people should have a voice in the selection of the next Supreme Court justice. In fact, they did — when President Obama won the 2012 election by five million votes,” Ms. Warren, a former Harvard Law School professor, said in a statement.
“Article II Section 2 of the Constitution says the President of the United States nominates justices to the Supreme Court, with the advice and consent of the Senate,” she wrote. “I can’t find a clause that says ‘…except when there’s a year left in the term of a Democratic President.’”
She added: “Senate Republicans took an oath just like Senate Democrats did. Abandoning the duties they swore to uphold would threaten both the Constitution and our democracy itself. It would also prove that all the Republican talk about loving the Constitution is just that — empty talk.”
“If I were a Republican — whether the Majority Leader all the way down to the county clerk — and every nominee I would say no hearings. No votes. Lame ducks don’t make lifetime appointments.”
“There is no precedent,” [Hugh Hewitt] continued. “And I will simply add, the base will not forgive anyone. Senators will lose their jobs if they block the blockade. There should be an absolute blockade on this.”
Whatever the merits of the constitutional argument, the Republicans’ political strategy here is extremely risky. It makes some sense at first blush—better to roll the dice that a President Rubio or Bush will get to appoint Scalia’s successor—but completely falls apart upon further analysis. There are serious compromise candidates on the current shortlist, extraordinarily qualified moderates like Sri Srinivasan who would likely refuse to overturn treasured conservative precedents like Heller (establishing an individual right to bear arms) and Citizens United (allowing unlimited corporate electioneering). If the Senate confirmed a Srinivasan-type now, it might have to swallow a slight liberal SCOTUS tilt—but it could, by and large, avoid dramatically altering the balance of the court.
If the Senate holds out until January 2017, however, it will be taking an astonishing gamble. Should voters send another Democrat to the White House in November, they just may turn the Senate blue again at the same time. At that point, the president could nominate a true liberal, in the vein of Justice Sonia Sotomayor—and Senate Democrats could revise the nuclear option and push him or her through over staunch GOP opposition. Once a Justice Goodwin Liu takes the bench, no conservative precedent would be safe. Goodbye Heller, goodbye Citizens United, goodbye McCutcheon and Hobby Lobby and maybe even the death penalty itself.
Obama does have the press on his side, and we should expect them to carry his water relentlessly on this issue. We have seen time and time again that this bunch of weak-kneed quislings in the Senate need to feel their backs against the wall before they are willing to show even the slightest bit of backbone.
The surest way to shut this nonsense down quickly is to get your Senator on the record, publicly, saying that they will not vote to confirm any of Obama’s judicial nominees. I don’t care if Obama nominates Mike Lee to the Supreme Court, the Senate should publicly say that they will not confirm him. If Obama nominates anyone, McConnell should know that he has at least 54 united votes behind him so that he can schedule an immediate floor vote, without even hearings, to promptly get a “no” vote and send a message…
[G]et on the horn to your Senator. Call their office directly, or hit the Capitol switchboard at (202) 224-3121. Keep calling back every day until your Senator is on record stating categorically that they will not vote to approve any Obama judicial nominee. Be relentless. Let them know that capitulating here will be a sin that will not be forgiven. Make sure that they are constantly hearing from their staff about the number and urgency of the calls they are getting on this issue.
[T]he Senate does have an obligation to fulfill its “advice and consent” obligation. Says the Constitution, the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court…” A preemptive rejection of any possible Supreme Court appointment is self-evidently in conflict with that obligation. The phrase “do not let it become about whoever Obama names” makes that explicit.
A man as versed in the Constitution as Senator Cruz should be embarrassed to posit that the nation could owe a debt to Scalia, that a “debt” to a dead man should play any role in a process governed by the Constitution, or that a sitting president’s nominee should be preemptively rejected before his or her identity is known. There is no agreed upon standard of what legitimate advice and consent entails. But any standard that rejects a nomination before it is even made fails the laugh test.
James Madison’s Constitution is not a living, breathing document that changes in meaning as an election approaches. A president is no less legitimate as a lame duck. The Framers intended for the Senate to give up-or-down votes based on a nominee’s merit, however it’s defined. The timing of an election should play no role.
Consent means the Senate is under no obligation whatsoever even to hold a vote on any presidential appointment. The Senate’s obligation is to do what the Senate wants, and only what the Senate wants. Those are the rules. To try to hold senators to a different rule is to try to change the rules on them–and people tend to resent that. Everyone is free to disagree with the positions individual senators or the Senate as a whole take on individual nominations or prospective nominations. But there is no question that senators individually or collectively can deny their consent to any actual or prospective nomination for any reason–just as the American people can vote for whomever they want, for whatever reason they want.
Indeed, President Obama isn’t even entitled to nominate a replacement for Justice Scalia–or at least, Congress can deny him that right. The Constitution gives Congress the power to decide how many seats there are on the Supreme Court. In 1789, there were only six. Given sufficient congressional support (i.e., veto-proof majorities in both chambers), Congress could reduce the number of Supreme Court justices from the current nine to eight. McConnell, Cruz, and Rubio could propose doing so right now. It seems strange to criticize senators who are merely expressing in what circumstances they will withhold their consent when Congress has the power to deny the president the ability to fill this vacancy entirely by itself eliminating this vacancy.
At the same time Democrats turn a blind eye to President Obama repeatedly ignoring constitutional limits on his power, they claim Republicans would dishonor the Constitution if they use powers the Constitution clearly grants them. That is unlikely to dissuade Senate Republicans from delaying a vote on Scalia’s successor until 2017. Nor should it.
Our institutions are failing us. The Senate leadership has dismissed, out of hand, any presidential nominee as unacceptable. This, despite a closely divided court which is suffering from low evaluations from the public, and a Congress perceived as being incapable of governing in the general interest. On the left, the tasteless, shrill howls of glee over Scalia’s demise only deadens moderate ears to the legitimate complaint that conservative lawmakers have abandoned their larger mission of governing.
And, Scalia’s passing at 79 becomes, immediately, a defining debate point for the presidential campaign. Unfortunately, this campaign is lacking anyone of sufficient statesmanlike quality to articulate with any legitimacy either the importance of Scalia as a jurist, or the need for the constitutional order to act accordingly to fill his seat consistent with the needs of these times.
We are failing because there is no desire to place governing ahead of tactical politics. America functions, barely, without a legislature capable of governing. It defies the reconstitution of a court which will be shaped by the combined legitimacy of a Senate of one party, chosen by the people, and a president who has twice commanded the majority of the electorate and who retains relatively strong approval ratings for a seventh year in office.
Those of us who agree with Scalia’s view should keep it in mind as we consider how to respond to the vacancy on the Supreme Court. The Constitution gives President Obama the power to nominate someone to fill it, and gives the Senate the power to decide whether to hold a vote on his nominee. Those who want Obama to have another Supreme Court appointment are going to make their arguments that time-honored norms militate in favor of what they want, and those who don’t will find time-honored norms that militate the other way. The fact that this president has repeatedly stretched the Constitution will doubtless also be part of the debate, as it should be.
But the norms surrounding the Court also need to be rethought in light of the role it has come to play in our national life over the last few decades. Senators—first the Democrats, then the Republicans—have already largely abandoned the old norm of “deference” to a president’s nominees: the idea that a nominee should be confirmed so long as he is ethical, has the relevant credentials, and is respected by other lawyers. As the Court has taken on more legislative authority, senators have begun to evaluate nominees as potential lawmakers…
If the Supreme Court were a fundamentally apolitical body in the relevant sense—if the justices were engaged in the interpretation of legal texts in as neutral a manner as possible, letting the chips fall where they may; if, because they were neutrally interpreting a Constitution that does not grant them significant authority to decide nearly as many policy questions as they do, their decisions mattered less for the dirction of public policy; if the justices disagreed merely on the close and technical questions that even a sound judicial philosophy would leave open—then it would be entirely reasonable for senators who disagree with Obama on most issues to vote for his judges anyway. And it would be entirely reasonable to facilitate Obama’s replacement of Justice Scalia, even in a presidential-election year.
Americans will not vote for a new president for nine months, and they will not have a new president inaugurated for 11 months. The GOP argument is that the president enters a no-confirmation zone nearly a year before the end of his or her term. From here, both sides will eventually have cause to argue that the Senate should ignore presidential nominees in the run-up to all federal elections, which occur every two years, rather than just before presidential votes. That could zone out half of every president’s time in office, rather than just a quarter of it.
That is not the only way the coming Supreme Court brawl could escalate. Suppose: Republicans block Obama’s coming nominee pending the election results. If the next president is a Republican, Senate Democrats argue that the GOP illegitimately denied their president a Supreme Court confirmation, so Republicans deserve to have their president’s pick blocked, too. As Linda Hirshman pointed out in December, Democrats will no doubt find the prospect of an eight-member Supreme Court to be appealing — it would give lower courts, now filled with Obama appointees, more influence. And so forth.
As far as I can see, President Obama has at least two good options before him. The first would be to try to drive out turnout in 2016 by nominating someone who a) will agree with his party on pretty much everything, and b) can be spun easily into a martyr. As we learned with the Sotomayor nomination in 2009 (and as I learn each time I criticize her), it is extremely easy to pretend that Republican opposition to unacceptable judicial philosophies is “really” opposition to the immutable characteristics of whoever happens to hold them. If Obama is worried that his party might lose the election in November, he’d be smart to choose a radical candidate who reflects one or more of the Democrats’ key minority constituencies, and then to demagogue the hell out of the resultant contretemps for as long as he feasibly can. In truth, conservative opposition to this candidate would have no more to do with his identity than progressive opposition to Clarence Thomas has to do with his being black. But this is politics, not physics, and nonsense flies cleanly through the air these days. If Obama is so minded, he can give that nonsense a push.
Obama’s second good option would be to heighten the civil war within the GOP by offering up a nominee that could feasibly be approved. If the president were to propose, say, the D.C. Circuit’s Sri Srinivasan, he would be able to point out repeatedly that Srinivasan had served in the Bush administration’s Office of the Solicitor General, and to note that, last time the Senate had been asked to vote on his nomination, it did so 97-0. (Among those who voted for Srinivasan in 2013 were Mitch McConnell, Marco Rubio, and Ted Cruz, all of whom have suggested that the Senate should wait to replace Scalia until the next president is in office.) As far as I can see, a Srinivasan-type appointment would provoke a serious fight within the Right, potentially weakening it ahead of November. In one quarter, you would hear the go-along-get-along types arguing that the president has a right to choose whomever he wants as long as they are “qualified,” and warning that a Bernie Sanders or Hillary Clinton nomination might yield someone much worse. In another quarter, you would hear the firebrands terming anybody who was so much as considering acquiescence to be a traitor to the cause. If Obama wants to see a public spat between the Republican nominee and some of the party’s elders in the Senate, this course strikes me as a clever way of doing it.
All in all, the President has the upper hand here.
A Senate recess from February 12 (at noon) until February 22 (at noon) is a recess of exactly 10 days. Thus, under Noel Canning, the Senate is potentially in recess, and President Obama’s recess appointments power may be exercised.
Under S. Con. Res. 31, the only way to recall the Senate back into business before February 22 is with the “concurrence [of] the Minority Leader of the Senate,” Harry Reid (D-NV). Somehow I doubt Sen. Reid will grant such concurrence to reconvene, should President Obama decide to use this 10-day recess to make a recess appointment and replace Justice Scalia…
If this is indeed the case, the Senate is presently in the midst of a 10-day recess (not a pro forma session), and under Noel Canning, President Obama currently possesses the power to make a recess appointment to the Supreme Court until noon on February 22, when the Senate comes back in session.
Half of Republican voters in the New Hampshire primary on Feb. 9 said they had been betrayed by their own party. Any path but obstruction would almost certainly lead to depressed Republican turnout in November and losing the White House for the GOP, if not the Senate. Even South Carolina Sen. Lindsey Graham, a Republican who has long supported the qualified Supreme Court nominees of Democratic presidents, made clear that his vote was far from certain. “President Obama is not going to get the benefit of the doubt from me,” he told reporters before the debate began.
For Democrats, who are hoping to keep the White House in November by casting Republicans as extreme, reckless and rigid, the incentives were similarly alluring. The coming obstruction will give Democrats a talking point through the general election, a fresh example that the other party, which less than one in four Americans identify with, has gone off the rails. “The Republicans in the Senate who are calling for Justice Scalia’s seat to remain vacant dishonor our Constitution,” said Democratic frontrunner for the nomination, Hillary Clinton, in a talking point that will be repeated endlessly in the coming months. Obama has little reason to appoint a compromise candidate, like a Republican nominee who would infuriate his own base before an election year. It is not even clear if such a candidate could get confirmed…
“Modern politics is a long succession of social norms giving way to power,” tweeted New York magazine writer Jonathan Chait, after the Scalia news came through. There is an important corollary to that. The democratic experiment has the power to sabotage itself. When factions divide in a way that makes breakdown and collapse mutually beneficial, breakdown and collapse become possible.
If there is to be a liberal replacement for a figure as towering as Scalia, if the court is about to swing sharply to the left, it’s far better for the judicial branch’s legitimacy if that swing follows a democratic election, a campaign in which the high court stakes are front and center in the race.
But because they will be front and center, Scalia’s death promises a war like none other between here and November, and an extra layer of insanity in a campaign already defined by radicals and demagogues.
The irony is that this kind of high-stakes collision of law and politics is precisely the thing that Scalia’s legal philosophy strained to curb and check and roll back, by promoting a more limited and humble vision of the Supreme Court’s role in our republic.
But for all of his importance, all his influence, in this effort he clearly failed — and what’s about to come will prove it.
“We should not allow a lame duck president to essentially capture the Supreme Court in the waning months of his presidency.”