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Wednesday, April 09, 2014

The Supreme Court Confirmation Process

Gerard N. Magliocca

If you believe Nate Silver, then the GOP has a fine chance of taking control of the Senate in 2015.  The last time that a Democratic President appointed a Justice confirmed by a Republican Senate was in 1895 (Rufus Peckham, the author of Lochner), so this is a rare political conjunction/junction.  I want to make two observations about how a party change in the Senate could shape the Court.

First, we are in uncharted waters with respect to a party division like this in the modern era of polarized parties.  The days where Justice Kennedy (appointed by President Reagan) could be confirmed unanimously by a Democratic Senate are over.  It's hard to know what kind of Democratic nominee can get a majority (or sixty votes) in a chamber controlled by Republicans, and thus we may be looking at a more unorthodox selection the next time around.  (Someone older who won't be on the bench for long?  Someone with a more bipartisan profile?)  It's been a long time since a Justice was confirmed who was not predictable, but that could end in 2015.

Second, the rule change in the Senate to eliminate filibusters of circuit and district judges may have the perverse effect of making a Supreme Court filibuster more likely.  The Senate excluded the High Court from cloture reform, and there would be no reason for a Republican majority to change that when a Democrat is in the White House.  Accordingly, the sixty-vote threshold could apply to anyone that President Obama selects.  No wonder some people want Ginsburg or Breyer to retire now.    

Comments:

If Obama appointed a genuine swing vote like Kennedy or O'Connor, he or she would sail through.


 

"It's hard to know what kind of Democratic nominee can get a majority (or sixty votes) in a chamber controlled by Republicans,"

The kind Obama wouldn't even consider nominating, I'd guess.

A lot depends on who left, and under what circumstances. One of the minority, he could probably get away with nominating a younger moderate, because nothing would immediately change.

OTOH, if it's one of the majority, (Maybe Thomas has a heart attack...) I don't see any chance at all of a Republican Senate confirming anybody Obama would be willing to nominate.

If it's one of the majority, and they died in a remotely suspicious manner, better have plenty of food and water stockpiled, it isn't just going to be a political fight.
 

Who is this swing vote person though?
 

Jeffrey Toobin has argued that Sri Srinivasan has been teed up for possible nomination, and both his biography (incl. his clerkships and past legal practice) and the way he sailed through his confirmation proceedings for the D.C. Circuit suggest that it would be difficult for conservatives to muster any plausible argument against him, other than "Obama nominated him". The fact that he makes liberals nervous would be a bonus to conservatives. Now he just needs to avoid writing any telling opinions on the D.C. Circuit until the spot opens up.
 

The assumption of "genuine swing vote" seems to be that such a justice would be nominated by a Republican President. Assuming the descriptions of Kennedy or O'Connor as a swing vote, who knew when each was confirmed?
 

Kennedy was replacing a "swing vote" (Powell), so that concern was a big factor in the nomination process though at the time, he was less important than he is now.

O'Connor replaced Stewart, who was in effect a moderate that was a centrist (see, e.g., The Brethren -- "The Middle Holds" -- of course, then STEVENS was supposed to be there), so that might have been a concern, but I doubt it was much at the time.

As to Brett's comment, it very well might be an honest account of what Republicans will do. They have filibustered people they previously said they supported. So, yes, it's quite possible that no one he would nominate, even someone who leans right, would be supported.

Obama has repeatedly found people for the lower courts that Republicans have found acceptable, including home senators. So, he probably can find someone to replace Scalia that is quite credible to Republican 1995. But, Republican 2015, not so much.
 

I don't see any reason why the Rs would allow a vote on any Obama nominee. They'll prefer to gamble on the outcome of 2016. Now, that's a poor gamble IMO, but I think they'll take it.
 

Mark Field, how long do you think the Rs would leave the slot in limbo? 2015 - 2017 is a long time.
 

Oh, I think they'd be willing to leave it empty for quite a while, longer if filling it meant changing the balance on the Court. Of course, they may not need to wait very long, depending on when the vacancy arises.
 

Okay.

(1) It might matter who retires. A long absence to fill the Ginsburg seat with some late 50s solid female appellate judge will be different than if Scalia leaves.

(2) If someone leaves in June 2015, leaving the slot open for a term and a half to me (not that care to ask) is a hard sell for Republicans. 2016, sure. The MSM might even make that sound "proper."
 

#1 sounds right. My bet is that the Rs would gamble on #2 and take the heat. The cost to them is too great.
 

Well, not hoping for it or anything, but be interesting to see.

Scalia retires and Obama appoints some totally respectable somewhat right leaning sort and they pull that, be um interesting.

Don't see Obama in that situation being dumb and appoint a Fortas. Be someone some on the left won't like that much, but an improvement. Then again, anyone other than Paul Clement, maybe the Rs will just do as you say.
 

"So, yes, it's quite possible that no one he would nominate, even someone who leans right, would be supported."

Actually, my view is that, for the Supreme court, Obama might be willing to nominate somebody liberals regard as leaning right, particularly if replacing one of the conservatives, but probably not anybody conservatives would so view. (Cue the cries of "no true Scotsman!"

For instance, I'm fairly certain that Republicans would vote to confirm Alex Kozinski to the Supreme court. Do you suppose Obama would be willing to nominate him, to replace one of the current majority?
 

This comment has been removed by the author.
 

Jack Balkin's "The Last Days of Disco: Why the American Political System is Dysfunctional" builds in the scenario of the role of the Court as the change in political power takes place with demographic change. The transition may be delayed because of the Court.
 

This comment has been removed by the author.
 

I don't think Obama would nominate Alex Kozinski to replace Ginsburg or Breyer, nor would that be sensible or match what presidents traditionally have done & have deemed to have a right to have.

If Scalia or one of those on the right had to retire, yes, Obama very well possibly might appoint a sixty-five year old who has shown true libertarian leanings and did things like support race based programs, strike down tracking devices on privacy grounds, visited people in prison, shown himself to be a consistent free speech libertarian ala Kennedy etc.

Just like Obama as part of a lower court deal nominated someone the various left leaning groups are strongly against. OTOH, I don't think Republicans controlling the Senate necessarily would support Kozinsi, just like they basically as a block opposed a former Republican senator who was pretty conservative when he was up for Secretary of Defense.
 

Cabranes might be confirmable, but I don't think the WH would want to nominate him. Maybe Hull because she voted against PPACA, but I don't know much about her, not my circuit.
 

Gerard N. Magliocca said...Who is this swing vote person though?

Obama can't find another Kennedy among all the federal and state appellate judges?

The problem is not a lack of supply, but rather that Democrats have intentionally declined to appoint any swing votes to the Court in a couple generations.
 

Is a "swing vote" on the Court based on foresight resulting from the nomination/approval process or by way of hindsight following years of performance by a Justice? Some say hindsight is 20-20. But Political Scientists are not 20-20 on empirical studies. So how effective can the foresight of the nomination/approval process be? Consider the "OOPS!" moments of Presidents who have regretted some of their nominations who were approved.
 

Mark Field: "Oh, I think they'd be willing to leave it empty for quite a while, longer if filling it meant changing the balance on the Court. Of course, they may not need to wait very long, depending on when the vacancy arises."

Agreed. If there's one thing which characterizes the modern GOP, it's total willingness to ignore custom.
 

(Someone older who won't be on the bench for long? Someone with a more bipartisan profile?) It's been a long time since a Justice was confirmed who was not predictable, but that could end in 2015.
 

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