Judge Srinivasan was the presumed next choice and in some other situation would be something of a non-controversial choice. Trickier now.

Judge Kozinski would be an interesting choice.
 

I can only assume your "recommendation" is an exercise in sarcasm. Neither party will support Justice O'connor back into the SCOTUS seat.
 

I think appointing O' Connor is a terrible idea. I am assuming a Democrat wins the election. Why give up appointing someone with the ability to overturn Citizen's United? And lots of other terrible decisons this .court has made.

It also makes no politcal sense. None whatsoever.
 

If they don't confirm someone, the Court is impaired for a couple sessions. If they do, for a couple decades. That's the conservative point of view. Obama is, based on past performance, extraordinarily unlikely to nominate anybody the Senate majority regard as even minimally acceptable. They are not under any obligation to confirm someone just because they were nominated.

The next President may be a felon or communist. If that happens, the country is screwed anyway, by its own choice, and who is on the Court will be the least of our concerns.
 

Brett sets forth what he considers the " ... conservative point of view." But then Brett screeds into his more truly anarcho-libertarian point of view, perhaps based upon his concern with the changing demographics, informing us " ... who is on the Court will be the least of our concerns." leaving us up in the air as to what would be our real concerns. A possible answer: A response to an anarcho-libertarian's dream.

 

Judge Srinivasan, who has for the last few years been seen as top of the short list, would be an appropriate choice. He clerked with Ted Cruz. Srinivasan was appointed as Principal Deputy Solicitor General of the United States. As of May 2013, Srinivasan had argued 25 cases before the U.S. Supreme Court. He was confirmed by the Senate in 2013 97-0 for the D.C. Court of Appeals. He was vetted and found appropriate. The slot should be filled quickly and that in some other era might do it.

Since Republicans repeatedly didn't find people objectively perfectly acceptable in the past acceptable, sure, that might not be enough now. Again, Brett's honest conservative labeling is appreciated. The libertarian/anarchist thing given his comments overall just comes off as fake.
 

You've got to distinguish between who the Republican Senators personally find acceptable, and who they can, for political reasons, admit to finding acceptable. They're mostly well to the left of their own base, personally, but are constrained by the need to avoid angering the people who elected them.

If the vote is held, I suspect Obama can get somebody confirmed, by pulling in all the Democratic Senators, and a few Republican Senators who are retiring, and don't care if they piss off the people who elected them. Even to do that, he'll need somewhat of a stealth nominee, willing to tell the right lies while being grilled at their confirmation hearing.

But I think McConnell might stick by this pledge, he's going to be retired if he doesn't.

Joe, as I age, I become less of a Libertarian. In part, this is because the libertarian movement started becoming less serious once the LP ceased to have any plausible prospects of success. But mostly it's a growing appreciation of how important it is that society continue to function, vs trying to improve things.

A pity the new state movement never got traction, we could have empirically tested a lot of ideas, instead of having to reject them because the stakes are too high to risk failure.
 

The MSM, in a further extension of their balance over objectivity meme, is already presenting the issue as both Obama and the Republican senate being in equipoise, even though the former is merely willing to exercise his constitutional duty and the later is refusing to even attempt to fulfill theirs.

There will be no resolution any time soon. If a party is willing to have held the debt ceiling hostage, a USSC stalemate is yet another card to play, the country be damned.
 

it has been a long time since i posted anything here, but now is the time. i fully agree with lawyer in nj. this lawyer in ny wonders what justice scalia, the strict constructionist that he was, would say. acknowledging that the senate has no constitutional duty to confirm, but only to advise and consent, i thought that the strict language of the constitution says that the president shall nominate supreme court justices, not the next president or the president the senate likes or the president big monied backers of the senate like... but i could be wrong.
 

The debt ceiling matter was a lot of sturm und drang but eventually settled each time.

In response to people on my side saying Republicans will block any nominee in a case like this (though didn't think it would happen NOW), personally, I figured it eventually wouldn't happen on this level. Republicans in Congress are part of the government and enough accept (fwiw I think this respects majority will) driving off the cliff is not acceptable. Proverbially, this is why a 4-4 Court for 1.5 terms amounts to here.

Elections have consequences. Thurgood Marshall was replaced by Clarence Thomas. This includes shifting of the Supreme Court some though without a constitutional amendment with set terms, it will occur in a more abrupt fashion like this at times. The rest of this term is basically a 4-4 Court. But, though I won't bet money on it, I think there will be nine for the First Monday in October.
 

Brett's response:

"Joe, as I age, I become less of a Libertarian."

may not suggest that Brett is abandoning anarchism. I can understand that aging libertarians may appreciate the safety net provided by collectivism/progressivism. Recall that PA/Dutch adage on libertarianism: "We grown too soon old and too late smart."
 

A much more logical strategy than actually reappointing O'Connor would be to negotiate a recess appointment for her. That appointment would expire in January 2018, but I presume she would essentially just serve for the remainder of the current term and the 2016-17 term.

No ideologically acceptable appointee is going to get through this Senate for a permanent seat. The Democrats will need to carry the White House and ideally the Senate in the fall elections to effect that change. In the meantime, however, there are a bunch of massive cases that would be very bad news even if the existing court just ruled along party lines-- the immigration case (4-4 split affirms a nationwide permanent injunction against DAPA), abortion (4-4 split affirms horrific Texas anti-abortion law), and to a lesser extent the contraceptive mandate (4-4 split keeps 8th Circuit's ruling against the mandate in place, while upholding it in the remaining circuits). And, importantly, I think O'Connor would rule for the liberal side of all of those cases.

Meanwhile, the big "conservative judicial activist" cases-- Spokeo, Evenwel, Bouaphakeo, and obviously Friedrichs-- have mostly already been argued. So there's little risk of her flipping the court back to a conservative direction on those.

So getting O'Connor through for a term and a half would be a big judicial win for the Democrats-- and it would keep open the possibility of flipping the court permanently when O'Connor leaves again in June 2017. But it might actually be politically salient for the Republicans, who could blame it on "executive unilateralism" and such, while simultaneously avoiding the grotesque political embarrassment of opposing an O'Connor nomination publicly.

The more I think about this, the more it seems like clearly what ought to happen (assuming O'Connor's willingness to serve, obviously).
 

There are also political risks for both sides in not confirming a new Justice this year. What if the GOP wins the presidency this Fall? Then President Obama will lose his chance to name the next Justice. But what if Democrats retain the presidency and win the Senate this Fall? Then the GOP will lose any chance to influence the next Justice. This mutual risk opens the door for a compromise.

The GOP has little political reason and absolutely no legal reason to compromise with Obama on an appointment.

Here are the electoral fundamentals heading into 2016.

> The voters have decimated the Dem candidate bench for federal office by firing over 1,000 Dem elected representatives at the state and federal levels since 2009.

> GOP voter enthusiasm in polling and at the polls in IA and NH is sharply higher than that of Dem voters. The percentage of voters self-identifying as Democrats is at a modern low at Gallup.

With this background, no one outside of the Democrat leadership is predicting that the Dems take the Senate in 2016. There is nothing close to a Democrat wave on the horizon like during 2006 and 2008. This will likely be a status quo election (one or two seat shift either way).

The GOP has a better than average chance of picking up the White House in 2016. Consider the following:

> Does anyone here honestly believe that Clinton and Sanders are strong national candidates? Can any of you Democrats name a weaker set of presidential candidates over the past generation? Voters massively disapprove of Clinton and think that she is a liar. Sanders appeals to an enthusiastic white upper middle class demographic which is not close to being a majority of the electorate. This is a direct result of the voter decimation of the Dem bench.

> There is a reason why a record number of candidates entered and record money is flowing into the GOP primary.

Legally, there is no chance in hell that the Democrats will agree to nominate or approve a justice who will generally apply the law as written like Scalia. They will only agree to a justice with progressive leanings they can spin as a "moderate." Think someone like Souter.

When considering a lifetime appointment shifting the balance of the court, the fact that a handful of cases over the next year may end up in ties is a relatively small legal matter.

The only real calculation then is what the GOP establishment will do when Obama likely plays the gender and race cards by nominating what I suspect will be a female minority. The GOP congressional leadership already unconditionally surrendered on the budget by joining with the Democrat minority to fully fund all of the Democrat priorities to avoid an Obama veto and being blamed for "shutting down the government" during an election year. Will this same leadership hold up during that election year when the Democrat political class and media hammers them as sexist and racist?

I have little faith in them.
 

SPAM I AM! puts his biases on display with this:

"The only real calculation then is what the GOP establishment will do when Obama likely plays the gender and race cards by nominating what I suspect will be a female minority. "

Yes, SPAM I AM! displays he is sexist and racist, and expresses this concern:

"Will this same leadership hold up during that election year when the Democrat political class and media hammers them as sexist and racist?"

 

BD: "The only real calculation then is what the GOP establishment will do when Obama likely plays the gender and race cards by nominating what I suspect will be a female minority. "

Shag: Yes, SPAM I AM! displays he is sexist and racist, and expresses this concern

My observation is based on prior practice. Obama already very publicly played the gender and race cards with Sotomayor and several other nominees.
 

The GOP has a better than average chance of picking up the White House in 2016. Consider the following:

# posted by Blogger Bart DePalma : 1:30 PM

These poll numbers are GREAT news for John McCain!
 

SPAM I AM!:'s " ... observation is based on prior practice. Obama already very publicly played the gender and race cards with Sotomayor and several other nominees."

So when Republican Presidents nominated/appointed primarily white males they very publicly played the gender and race cards?

SPAM I AM! came to the conclusion that Barack Obama, the first African-American President publicly played the gender and race cards with certain appointments. The same logic (actually SPAM I AM! illogic) can be applied to white Presidents (Republican or Democrat) with their nominations/appointments of so many white males. America is diversified. What is the problem with extending diversity in government positions? It's rather obvious that SPAM I AM! fears the changing demographics and diversity in government. Perhaps he would have this addressed in a second constitutional convention.


 

Shag:

Obama is hardly the first Dem to play the race and gender cards. Identity politics has been part of the Dem playbook for as long as I can remember.

Your lily white dowager queen in waiting has been playing both as long as she has been in politics. I especially liked when she went a a Southern black church and tried to imitate the accent.
 

Maybe, BP should start writing in rhyme. No, that is Shag's department. Shag might be better named Sam I am. Anyway, it was noted various 4-4 votes would be problematic to liberals. Yes, though sort of as holding actions until the fifth vote comes along. If that was how it was going to go previously, 4-4 would be a sort of victory since the alternative was a national policy of 5-4 instead of upholding the case below.

Time will tell what the justices do to deal with various controversial cases though I gather they will try to find a way when possible to decide them narrowly instead of going the evenly divided Court route. For instance, I thinking Kennedy was inclined to strike at least part of the Texas law and uphold the contraceptive opt-out.
 

Obama is hardly the first Dem to play the race and gender cards. Identity politics has been part of the Dem playbook for as long as I can remember.
# posted by Blogger Bart DePalma : 5:19 PM

Says the imbecile who appears to be completely unaware of the GOP's "southern strategy".

 

Yesterday was a really good day for America.
 

Jonathan Adler has suggested that one way of resolving the impasse is for the Senate to allow Obama to make a recess appointment of one of the retired justices.

Another possibility would be for Justice Ginsburg to retire and for Obama to appoint a conservative to fill Scalia's seat and a liberal to fill hers.

It seems fairly obvious that the Senate Republicans are not going to allow Obama to fill the current vacancy with someone who will change the Court's balance, anymore than Senate Democrats would have allowed Bush to do so if one of the liberal seats had opened up in February 2008.
 

It seems fairly obvious that the Senate Republicans are not going to allow Obama to fill the current vacancy with someone who will change the Court's balance, anymore than Senate Democrats would have allowed Bush to do so if one of the liberal seats had opened up in February 2008.
# posted by Blogger mls : 7:03 PM

The best arguments depend on hypothetical situations that support what the person making the argument believes would have happened.
 

"anymore than Senate Democrats would have allowed Bush to do so if one of the liberal seats had opened up in February 2008"

Other than the perfect storm of Bork, not seeing clear evidence of this obviousness. In fact, repeatedly, a wing of the Dems went along with the Republican President on numerous important matters, including tax and foreign policy as well as such things like the confirmation of Alito. Not quite this, but his vote changed multiple key cases. Bork was an exception, a perfect storm. Lower court confirmation wars are of a different caliber and even there when pressed the Gang of 14 compromised.

It's a thought experiment. I would in fact be surprised if the Dems actually blocked someone they just confirmed 97-0 and was perfectly qualified in a range of ways and no ideologue bomb thrower type like Bork.
 

SPAM I AM!'s " ... for as long as I can remember" makes no specifications. SPAM I AM! has a short memory, going back to January 2009 with his continuing screeds against President Obama after 8 years of cheerleading and in lockstep with Bush/Cheney. And SPAM I AM! can frenetically wave his small hands in the manner of Donald Trump.

SPAM I AM! with his:

"Your lily white dowager queen in waiting has been playing both as long as she has been in politics. I especially liked when she went a a Southern black church and tried to imitate the accent."

once again displays that SPAM I AM! (who admits to being middle aged) is a sexist and racist. Unlike SPAM I AM!, I am not trolling at this or any other Blog for a presidential candidate, while SPAM I AM! continues trolling the Cruz Canadacy.

 

Shag:

I am a racist, but not a sexist, for noting the fact that our biracial community agitator president plays racial and gender politics.

And I am a sexist, but not a racist, for noting the fact that our white dowager queen in waiting plays racial and gender politics.

Did I get that straight?

Get help.


 

The only thing that SPAM I AM! gets straight is that hole he keeps on digging with his racist, sexist commentary, including his references to "our biracial community agitator president" and "our white dowager queen in waiting." At this rate he'll be in China faster than on a slow boat. Here's this hipster's advice: Get hep.
 

Joe- sure, it’s a thought experiment, but no more so than any other attempt to predict how political actors will behave based on past actions and statements.

You cite the Alito confirmation as a precedent that suggests Democrats would not have blocked a Bush nominee to fill a vacancy under the analogous circumstances (a liberal seat becomes vacant in February 2008). But almost every Democrat voted against Alito’s confirmation (only 4 of 44 voted for him) and 25 voted for a filibuster, including the ones who would have been most important in 2008 (ie, Reid, Obama, Clinton, Biden and Leahy).

Moreover, all of the key factors in my hypothetical were lacking in the Alito case. Alito was nominated to replace O’Connor. If he had been nominated to replace Ginsburg or Breyer, the stakes would have been much higher. (And even that doesn’t quite replicate the stakes here, where the majority would actually be flipped). He wasn’t nominated in an election year, or even close. And the Democrats didn’t control the Senate in 2005-06 so the practical ability to block Alito was significantly less.

Its hard to imagine, then, that you could be “surprised” if the Democrats who voted against cloture or confirmation in Alito’s case voted the same way in my hypothetical (by the way, Alito was unanimously confirmed to the First Circuit). And there is no more reason to be surprised that other Democrats would also vote against the nominee in my hypothetical than that Republicans who voted for confirmation (or didn’t support cloture) with respect to Kagan or Sotomayor would vote differently with regard to filling Scalia’s seat.

I would actually be slightly surprised if the Democrats I named even claim that they would have voted for a Bush nominee under those circumstances. Sure, they will say that “it depends on who the nominee was,” which is technically true of the Republicans too (if Obama nominates Paul Clement, I am sure McConnell will reconsider his position). But I wonder if they could, with a straight face, name an actually conceivable nominee they would have supported. I don’t think that even politicians are shameless enough to claim that they would have supported nominees for the Supreme Court that they blocked for lower courts (as implied by your comment).
 

The next President may be a felon or communist.

fel·on a person who has been convicted of a felony. But no one now running has been convicted of a felony, except in Brett's febrile imagination.

com·mu·nist subscribes to a political theory derived from Karl Marx, advocating class war and leading to a society in which all property is publicly owned. But no one now running advocates a society in which all property is publicly owned, except in the exaggerated drama of Brett's mind.
 

Merriam Webster: Fel-on one who has committed a felony.
Dictionary.com: Fel-on Law. a person who has committed a felony.

At this point it is absolutely certain Hillary Clinton has committed multiple felonies, even if a politicized DoJ might refuse to prosecute the case when the FBI refers it.

As for Sanders, I don't think he's a stupid enough communist to admit it.
 

US progressivism includes elements of socialism and fascism. Communism is really classical socialism on steroids.

Anyone who has taken a look at Hillarycare knows there is very little ideological difference between the Bern and the dowager queen in waiting. The former is just more honest about his objectives.
 

Tom Goldstein at Scotusblog contemplates the gender and racial politics of Obama's upcoming Supreme Court appointment.

http://www.scotusblog.com/2016/02/ninth-circuit-judge-paul-watford-is-the-most-likely-nominee-to-replace-antonin-scalia/

Bigot.
 

SPAM I AM1 makes a feeble effort to bootstrap his "virtues" via his:

"Tom Goldstein at Scotusblog contemplates the gender and racial politics of Obama's upcoming Supreme Court appointment."

contemplate = profound thought

As I noted earlier, SPAM I AM! makes references to "our biracial community agitator president" and "our white dowager queen in waiting." That's not profound thought. It's part of SPAM I AM!'s screeds since January of 2009.

Alas, rather than to China, that hole SPAM I AM! keeps digging will take him straight to that special place in Hell reserved for sexists and racists. (H/T M. Albright.)

 

Commenting on Neil Siegel's post rather than this one, he raises the demographics.
"Bazelon notes that “only three Supreme Court justices have died in office in more than 60 years. Most have controlled the timing of their retirements, and have chosen to leave the bench when the party that selected them holds the presidency and the Senate.”"

With the current cohabitation leading to gridlock, old Justices now have a strong incentive to hang on until they die in harness. Scalia was 79, the same age as Kennedy. Ginsburg is 82, Breyer 77, and the rest aren't chickens. Dawdling over Scalia's replacement raises the risk of a second death or incapacitation reducing the Court to seven Justices. Technically a smaller court could still function perfectly well - seven is actually better than eight -, but it would run a large risk of losing the respect on which its authority ultimately relies.
 

James: Technically a smaller court could still function perfectly well - seven is actually better than eight -, but it would run a large risk of losing the respect on which its authority ultimately relies."

Respect from whom?
 

mls, all your argument does is demonstrate that you accept the worst possible tacit assumptions about Democrats and reject others such as "political posturing".
 

mls "thought experiments" tend to be possibilities but you used "fairly obvious," which is a high bar. Your reply to my reference to Alito is telling. They didn't filibuster. They had to votes. But, they didn't. They voted up and down and the net result there was Alito was justice. It would be like Republicans letting Democrats clean up PPACA (which Adler sanctimoniously noted was sloppy without calling out his friends for making Democrats unable to clean it up except in a limited way given current rules) and then voting against it when it came up for a vote.

So, you have basically nothing there. Then, you note "all of the key factors" were lacking. What? O'Connor was the swing vote and Alito coming on multiple matters, particularly campaign finance, resulted in different results. So, you are selectively skipping over a major "key factor" -- a vote that significantly changed the balance of the Court.

You are spinning. Yes, I would be surprised if the Democrats actually blocked a Supreme Court justice. As to the "election year" deal, as noted by SCOTUSBlog today, that repeatedly happened over the years. I don't include Kennedy since the process started early. And, the "Thurmond Rule"? Six months.


 

And, what Mark Field said.

Or, to paraphrase George Constanza, it's not that if you convince yourself you are just objectively providing commentary.
 

I think mls is right, and Mark and Joe are lying and deflecting so they don't have to answer his (totally obvious and appropriate) hypothetical.
 

To put a finer point on it- if Justice Kennedy had died in early 2008, I would have called for the Democrats to refuse to confirm any Bush appointee, and would have called for a primary challenge or electoral defeat and permanent retirement of any Democratic Senator who refused to go along with it for any reason.

And I expect almost EVERY liberal would have agreed with my position. There's just no way we would allow Roe to get overturned when an election was coming up which could decide the new appointment. To be specific, when I say Mark Field and Joe are lying, I 100 percent believe they would have supported my position as well.
 

It certainly is convenient when you get to be both prosecutor and judge of your own hypotheticals.
 

Just to be clear, Dilan is talking about something different than what mls is talking about. Dilan is talking about what he or I or Joe might have advocated. mls is talking about what the actual Senators would have done in 2008. Even if the three of us yelled and screamed loudly, that wouldn't make mls' point true or provide evidence in support of his claim -- Dem Senators routinely ignore their base.

My view has always been that judicial appointees are entitled to a vote. If they get voted down on the merits, so be it. I do object to the idea that the Senate would refuse to even consider the nomination (except perhaps in some bizarre scenario).
 

Wow. I must say that I am stunned by Dilan's candor. It is almost enough to give me some hope for humanity (and that has nothing to do with being liberal or conservative).

FWIW, I don't think Joe and Mark are "lying." If you read the article that Sandy Levinson referenced in another post (which I noted he didn't open up for comments) on "constitutional bad faith," I believe that their responses might be examples of what the author calls Sartrean bad faith. Or maybe they are just being argumentative, which they tend to be.

The notion that Democratic senators "ignore their base" is exactly what the Tea Party passionately believes about Republican senators. And no doubt in both cases it is sometimes true. My point was that in these circumstances it becomes impossible to ignore the base if you want to have a base any longer. This is just an observation about political behavior, not a normative judgment.
 

For Sartre, acting in "bad faith" means denying that one has the possibility of choice as a form of inauthenticity. See, e.g., http://plato.stanford.edu/entries/sartre/ :

"We could say that authenticity is fundamentally living this ontological truth of one's situation, namely, that one is never identical with one's current state but remains responsible for sustaining it. Thus, the claim “that's just the way I am” would constitute a form of self-deception or bad faith as would all forms of determinism, since both instances involve lying to oneself about the ontological fact of one's nonself-coincidence and the flight from concomitant responsibility for “choosing” to remain that way."

So, no. I can see why you're happy to adopt Dilan's argument, but it doesn't help your claim at all. I'll leave it to others to decide where "good faith" and "bad faith" comes in here.
 

"Sartrean bad faith"? Lol.


 

Mark is still avoiding the question and lying.

If my hypothetical had happened, he would opposed any Dem voting to confirm any Bush nominee, because any such vote is a vote to overturn Roe.

And who cares if anyone gets a vote? So the Senate votes no. We still don't get a Justice. A vote is irrelevant if it is going to be no amyway.
 

I already said I personally would have advocated a no vote on the merits. That's not the same thing as mls was arguing.

Votes are not irrelevant IMO. They force the opponents to provide the public with an acceptable reason for the vote. It's a form of taking responsibility, if we're going to mention Sartre.
 

Also, although it has nothing to do with their hypocrisy and lying, Mark's political analysis is just as wrong. Roe is THE single most important interest group issue in the entire Democratic Party. No freaking way that any Democratic Senator would fail to understand that and vote to confirm a Bush nominee in that scenario.
 

In this situation, everyone understands everyone's reasons. And the vote is party line. Holding one provides zero information.
 

I can't agree about the vote. If McConnell refuses to allow a vote, or if Grassley refuses to allow a hearing, they take blame as individuals and allow the other Senators to obscure their responsibility. If each Senator has to cast a vote, they become personally responsible to their voters.

As for what the Dems might have actually done in 2008, that's speculation. Which was the only point Joe and I ever made.
 

Moving on ...

I originally was leaning toward the Judge S., but the move by the Republicans and other factors leads me to wonder.

Judge Jane Kelly, who also was unanimously confirmed a couple years ago, if not for the D.C. Circuit, has various pragmatic and substantive positions. She is from/worked professionally in the Mid-West and was a public defender (but was seriously hurt in an attack, so has a victim rights story too), both things useful for a Supreme Court very coastal and prosectuorial (even Sotomayor was a NYC prosecutor). I don't know her liberal bona fides on other issues (one reckons she has them) but some are already concerned Judge S. is a bit too conservative. The defense attorney bit gives a special cachet to her there.

She is a woman, obviously, which some feel should be a criteria even though Obama already picked two. And, she has a personal connection to two key players. She went to Harvard Law (she is thus still of the Eastern establishment in that fashion) with President Obama. And, the Chairman of the Judiciary Department (and fellow Iowan) Chuck Grassley was a big supporter of her the last time. This smoothed/quickened things considerably.

Of course, this is the big show, but the Grassley connection is even better to shame Republicans than Cruz saying how great a guy Judge S. was. I'd like to know more about her positions, but I think I'd lean toward her to be an ideal choice unless the idea is to put someone out there to fail. Loretta Lynch is being suggested. A non-judge who is the attorney general? Nah. A black judge who Grassley strongly opposed and most Republicans voted against? Nah.

I think Judge S. or Judge K. would be safe bets. We shall see.
 

"positions" should be "positives"

I appreciate Mark Field's comments though Dilan Esper's might have been a homage to Scalia's more self-assured ideological tinged opinions. I respect satire.
 

I decline to get caught in this 3-way brouhaha, but wonder if Joe's "I respect satire." might be corrected to "I enjoy Sartre." Or does it make any difference?

Query: Might Obama nominate Judge Richard Posner? Similar to the elder Bush's nomination of Thomas to replace Marshall?
 

Personally, I think Obama ought to follow Ted Cruz' advice and nominate an originalist. Jack Balkin would be excellent.
 

Nominating Sandy Levinson's friend like that would ruin his negativity.
 

As for what the Dems might have actually done in 2008, that's speculation. Which was the only point Joe and I ever made.

The problem is, that's a dodge. It's important speculation.

If I am right (and I am) that you, me and Joe, and the Senate Democrats would have all refused to countenance the confirmation of a judge in 2008 who shifted the balance of the Court, then all these supposed arguments about constitutional principle are just complete BS. Which they are.

The Senate has the power to reject nominees, which means it has the power to reject nominees wholesale and wait for the election. There's nothing in the Constitution that requires a vote, though if you insist on one, I suppose the Senate could just voice-vote every nomination down and that would be the end of it. (Bear in mind, most confirmation votes in history were voice votes and not recorded.)

I'm really sick of people trying to dress up substantive arguments with phony procedural concerns. What matters here is the outcomes of Supreme Court decisions. Republicans have every right to fight for those, just as we Democrats also would.
 

I think Judge S. or Judge K. would be safe bets. We shall see.

Obama's nominee is completely irrelevant to this issue. Indeed, Obama himself is irrelevant. This is going to be decided by the next election, and therefore Obama's posturing (which is all his nomination would be) is uninteresting.
 

I appreciate Mark Field's comments though Dilan Esper's might have been a homage to Scalia's more self-assured ideological tinged opinions. I respect satire.

Confirmation fights are, as Thurgood Marshall might say, about power, not reason.

Again, what pisses me off about this is a bunch of liberal Pollyannas getting their knickers in a twist about the idea that anyone might actually play political hardball with a court that decides important political issues.
 

"Obama's nominee is completely irrelevant to this issue. Indeed, Obama himself is irrelevant."

Hyperbole bores me. The back/forth will affect the election & as Rick Hasen at Election Law Blog argues, it's quite possible Clinton/Sanders will pledge to re-nominate who Obama chooses. This won't make it "irrelevant."

It amuses me that Dilan is scornful of Scalia while using the same sort of radio talk show (if perhaps more inclined to be heard on Free Speech TV than FOX Radio) hyperbole and overheated rhetoric, calling -- like he's Trump or something -- the other side "liars." The label "posturing" is more posturing than the complicated political dance that is going here actually is.

Dilan is "pissed off" about something me and Mark Field isn't saying again. Why is this complicated? I said it would surprise me if "x" happened. "Might" it happen? Yes. Would some sort of "political hardball" be "played" by Democrats? Sure. The absolutist level of blockage being proposed isn't quite their style.

But, it might happen though February is months before the so-called "Thurmond Rule" kicks in. Also, Mark Field, who is not your typical person here (nor is Dilan Esper, from past experience) argued a p.o.v. Not the "idea" someone might do something else. Basically, so am I. This level of confusion depresses me.

Thurgood Marshall btw was replaced by Clarence Thomas, while the Democrats controlled the Senate, even though given Kennedy's vote in Webster that seemed to be the death knoll of Roe & they had another reason to block him. Racial issues affected their decision-making, thus showing the complex nature of things there.
 

Joe, elections are determined by fundamentals. Roe, of course, will be a bigger issue in the election because of this. But day to day horse race "who won the spin" BS is irrelevant, and Obama's Potemkin "nominee" is nothing more than that.

As for the rest, I'm not on the Supreme Court. That's kind of the point here-- it's one thing to use strident rhetoric in a legal opinion, and it's something else to use it in politics. Confirmation politics is politics.

In other words, my position is simple. This is a political issue. It's not an issue of "what the Constitution means", or some prior confirmation fight, or any other legal issue or precedent. It's politics. That's what it is, and that's what it should be, because the Supreme Court decides important political issues and this is the chance for elected representatives to be involved in those issues.

We should cheer this. And certainly, NOBODY should get their knickers in a twist that the voters are going to decide this and Obama is irrelevant. That's as it should be, given Roe v. Wade is at stake.

Thurgood Marshall btw was replaced by Clarence Thomas, while the Democrats controlled the Senate, even though given Kennedy's vote in Webster that seemed to be the death knoll of Roe & they had another reason to block him. Racial issues affected their decision-making, thus showing the complex nature of things there.

There's a lot of differences. Roe has become more salient to the parties since then. (There used to be pro-life Democrats and pro-choice Republicans. Now there are fewer.) Marshall did not retire in a Presidential election year. And there was the race issue as well.
 

"Joe, elections are determined by fundamentals."

Blather like that is better than calling me a "liar," I guess.

"This is a political issue."

Uh huh. Is this being disputed? The debate is the hows.

Obama isn't "irrelevant." I discussed why. You argue he should be, but that's another matter. Anyway, the voters "decided" his election and when he was elected various justices were in their 70s, including an overweight bombastic sort who was years older than many people who had heart attacks and died. They re-elected Obama. As in the past, I think this should mean a justice is confirmed. See the graphic in today's NYT.

But, the voters also decided elections of senators. Election has consequences there too, including Republicans rejecting one of his nominees. I think reasonable Supreme Court justices should be confirmed there though along the margins that can be tricky. And, well, the people let this bunch of Republicans win, and we are stuck with some of what we do. But, we can still say they are wrong.

See. I'm using your vanilla stuff, but seeing it differently. The basic principles aren't controversial. It's how you apply them. You know this.

As to the last point, sure, there are always differences. Arguably, especially if Kennedy (as I think he might) writes a mixed bag abortion opinion in the Texas case, it is LESS at risk now. There, before Casey, Roe seemed dead. If the Supreme Court (5-3 now) again upholds the right to choose, it is arguably less at risk now. There will be other issues that affect the nomination this time too, whenever the nominee is up. If eleven months left is too late, when is? If Scalia died six weeks earlier, you suddenly would have a different opinion?




 

1. Obama is irrelevant because his nominee is not going to be confirmed and because Roe (and maybe Citizens United), rather than his nominee, will be the important issue in the election.

2. Voters did not decide that Obama would get the appointment if Scalia died in his last year. That issue was not raised in the last election. That's why we need to have the next one.

3. I don't know exactly when the cut-off date is, but neither do my opponents. Certainly Obama doesn't get his nominee confirmed if Scalia dies on January 18, 2017, does he? We all have a "drop dead" date. Mine is dictated by politics. If the Republicans feel they can get away with delaying it until after the election, then Obama doesn't get the appointment and becomes irrelevant.
 

1. The nominee not being confirmed will not all by itself make him irrelevant and the word meaning "not as important as other things" is not how I would define it.

2. Voters "decided" Obama should be President. They don't "decide" specific things that Presidents might be called to decide. But, "that issue" as in the President being important in respect to judicial vacancies, including the Supreme Court, WAS raised. Voters also don't specifically decide who is justice. Presidents do.

3. Those who disagree with your position, including me, have provided a rough date late in the year -- the Thurmond Rule is a rough estimate there -- but that February is too early. Unlike January or even September, there is plenty of time now to get a justice for the next term. You didn't just rest on Republicans. You also argued the people have some right to decide. Republicans might "feel they can get away" with it late last year too. Why would mid-February be so much different than late December 2015 there?




 

Heller will be the important ruling in this election, not Roe, given that Roe, much to the right's disgust, survived the Court with Scalia on it, replacing him with another conservative wouldn't be enough to threaten it. Citizens United might be a factor.

But the real factor is Heller, a very popular ruling Democrats have vowed to reverse. Vowed to reverse in a political environment where gun control is political poison outside some urban centers.

Scalia's death guarantees that the NRA will be going all out to defeat the Democratic nominee.

Bernie might have avoided that, he used to have a decent NRA rating for a Democrat. But the operative phrase is "used to"; The national Democratic establishment forced him to swear allegiance to the gun control movement, and his reputation among gun owners is dirt, now.
 

"Obama already very publicly played the gender and race cards with Sotomayor"

How was the nomination of Sotomayer 'playing gender and race cards?' It's common to nominate sitting Circuit Court judges, which she was.
 

"the NRA will be going all out to defeat the Democratic nominee."

When was the last time this was not the case?
 

Joe:

1. The nominee not being confirmed will, in fact, render it irrelevant, because the sort of spin surrounding nominees has no effect on the electorate, which doesn't vote on that sort of crap. It employs strategists, and is fun to talk about on cable television, but doesn't win votes.

So Obama is, in fact, irrelevant.

2. The point is that we can have a referendum on this specific nomination, and that's a very good thing considering how important the Supreme Court is. That's superior to relying on the last election.

3. I think the cut-off date does depend on Republicans. If they vote down or block every nominee, and feel they can get away with it, it doesn't matter how much liberals whine about it. They have the power.

So if Republicans want to force this to go to the voters, they can, and will, and that's the end of the issue.

As I said, in the end, this is good. It will be clarifying to have an election where this is the specific issue. I think it helps Democrats, a lot, actually. I am not afraid.
 

This comment has been removed by the author.
 

This comment has been removed by the author.
 

2. Voters did not decide that Obama would get the appointment if Scalia died in his last year. That issue was not raised in the last election. That's why we need to have the next one.

# posted by Blogger Dilan : 5:40 PM

That is not correct. Appointing Supreme Court judges is a factor in every election.
 

I agree with BB. The Constitution doesn't say that a President that is not in their last year in office shall nominate Justices, it says a President shall. Anyone voting for a President realizes, or should, that they are getting a four year, not three year, package.
 

"Democrats have vowed to reverse."

They as a whole haven't. They in fact accepted it, especially as the Supreme Court has applied it in recent years.

==

1) Your analysis of voters is not the same as mine, including what I personally felt I was voting on in 2012 regarding nominating possible justice replacements. Anyways, "irrelevant" again comes off as "not important enough for me to care."

2) The "point" seems to be fluctuating. I think it a "very good thing" to give Obama the power given to him by the Constitution and to me by the voters in 2012 to nominate reasonable Supreme Court justices and have one confirmed. And, if blocked, oppose it. There is no "referendum" for some single issue.

3) I don't think it useful to give Republicans that much power without opposition (especially with such an open-ended date & given what the last two comments note) and that isn't the same thing as "whining." Your tone is more akin to that at times. And, again, we are electing a POTUS, based on a range of things. It isn't some referendum for one thing. That's a misguided approach.




 

I condensed my comments. "Decide" is being used in a special way that the killer Bs have made popular around here.
 

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