Lion of the Blogosphere

Republicans should not allow a Supreme Court appointment

As some long-time followers know, I disapproved of Republicans voting against Sotomayor and Kagan. My reasoning was that Obama is only going to nominate liberals to the court and those two weren’t the worst liberals possible. And they replaced Justices who weren’t on the conservative side anyway. (One of those two Justices was Souter, picked by George H.W. Bush because he had very little legal track record, so he thought that Democrats would easily approve him because it wasn’t clear that he was conservative. As it turns out, he wasn’t conservative.)

I didn’t think that there was anything Republicans could do about those appointments, and they just made themselves look bad trying. (And I’ve also disproved of Republicans doing stupid stuff like shutting down the government over Obamacare, and even stupider, threatening to shut down the government over Planned Parenthood funding. Those ruckuses were huge strategic mistakes, Republicans should have saved the firepower for truly important issues, like preventing Obama from appointing a replacement for Scalia.)

This time things are different. Too much is at stake if the Supreme Court switches from conservative to liberal, and there’s less than a year until Obama leaves office.

Yes, Reagan nominated Kennedy in November 1987, but he had a Republican Senate, and he was appointed because the Democratic-controlled Senate blocked his July 1987 nomination of Robert Bork. So Kennedy represented a win for Democrats as he was a more moderate Justice than Reagan’s original nominee. The precedent here is to “Bork” whomever Obama nominates, not to accept it.

I support the Republicans doing whatever they have to do to prevent a Supreme Court Justice from being appointed until at least the election. And then, if a Republican wins the election, they should keep blocking until he takes office.

Written by Lion of the Blogosphere

February 14, 2016 at 11:43 am

Posted in Law, Politics

56 Responses

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  1. And if a Democrat takes office in 2017, I guess it doesn’t matter who they nominate for the court? It will be liberal justices as far as the eye can see.

    Mike Street Station

    February 14, 2016 at 12:05 pm

    • Republicans are screwed if Hillary or Bernie wins.

      Lion of the Blogosphere

      February 14, 2016 at 12:06 pm

      • Which lends a “special” dimension, unforeseen, to this election. As it stood, it was a vital race which offered to let us dictate America’s self-definition for the next generation. The new generation is asserting itself, as well…this election offers change in so many ways. Scalia’s death just turbo-charges the impetus so much now. It’s a bit scary.

        Socially Extinct

        February 14, 2016 at 8:38 pm

  2. Another point is that the Kennedy nomination was a compromise choice and was recognized as such at the time. Is there any chance Barry is going to nominate a judicial moderate?

    I’m not even sure that moderate Democratic judges even exist any more. means in judicial terms. It seems like the only moderates are Republican judges.

    RSF

    February 14, 2016 at 12:27 pm

  3. Republicans prevent a liberal coup? HA!

    If anything, the repubs will vote FOR the transgendered Arab nominee Obama puts up. After all, the GOP is always looking to reach out to underserved communities . ..

    fakeemail

    February 14, 2016 at 12:32 pm

  4. The current crop of Democrats wrote the playbook on never letting a crisis go to waste. With the treason already evinced by RINOs, capitulating to Obama, I have little reason to believe they won’t cave this time.

    E. Green

    February 14, 2016 at 12:39 pm

  5. Shutting down the government to completely lame-duck the president would’ve been perfectly reasonable. If Democrats balked and complained about the widows and orphans that are dying because of Republicans, then the Republicans counter with re-opening government on a case-by-case basis to save said “widows and orphans.”

    Instead, the Republicans lame-ducked themselves and showed that they would cave-in to Obama on everything, which then emboldens Obama.

    Once this habit is established, I doubt there is a way to walk back from it, despite what Mitch McConnell says. A cuckservative is gonna cuck.

    map

    February 14, 2016 at 1:11 pm

  6. Do you remember last night Cruz corrected Dickerson on the date of the Kennedy appointment? That was impressive. He is certainly a bright guy. I don’t like him, but give him that.

    I agree with this post.

    gothamette

    February 14, 2016 at 1:23 pm

    • Cruz is smart, but I don’t approve of his extreme conservative positions on abortion and his ridiculous plan to abolish the IRS, and he has no chance of winning a general election because too many people just don’t like him.

      Lion of the Blogosphere

      February 14, 2016 at 2:20 pm

      • Neither of which would ever happen if he was elected anyway. Sure, he’d appoint conservative justices, but this would take a long time, if ever, to reverse Roe v Wade (and even that just leaves it to the states, doesn’t outlaw abortion). And the abolish the IRS rhetoric would likely meet a reality of just some good tax cuts and common-sense simplification of the IRC.

        I was also impressed that when Rubio said Cruz wouldn’t understand something he had said in Spanish, Cruz retorted with a phrase or two of what sounded like some fluent Spanish.

        Smartest guy on the stage or in the Dem or Repub contests for president by far.

        Truth

        February 14, 2016 at 6:13 pm

      • Smartest guy on the stage or in the Dem or Repub contests for president by far.

        Yes Cruz is smart by all accounts. But he’s WEIRD. Something off about him. And Trump is correct to point that out.

        Rubio is clearly a dope and his resume shows that.

        Don’t underestimate Trump’s New York “people smarts”. People who know Trump seem to like him. People who know Cruz all seem to hate him.

        Rifleman

        February 14, 2016 at 9:16 pm

    • But Cruz didn’t correct him. Dickerson kept asking if the appointment or the confirmation date mattered, since Kennedy was confirmed in Feb., 1988.

      Certainly if Bush were in office he would nominate a replacement, and Republicans would support him. Democrats would have to scramble to find a pretext to dismiss. I’m not sure the Democratic establishment would be so stupid as to announce beforehand they would reject ANY nominee sight unseen.

      This is not about the proximity of the election, but the balance of the court. George Bush Sr. had the opportunity to replace TWO liberal justices (one of his picks was Souter).

      If Obama nominates the Indian-American who was confirmed unanimously to the DC Circuit Court, it will be interesting to see what excuses McConnell can invent. Twenty-four Republican Senate seats are also up for grabs. But hey, maybe if they lose the election, they can vow to filibuster Scalia’s replacement until 2020.

      Vince

      February 14, 2016 at 2:49 pm

      • “But Cruz didn’t correct him. Dickerson kept asking if the appointment or the confirmation date mattered, since Kennedy was confirmed in Feb., 1988.”
        Yes he did. Dickerson originally said that Kennedy was “appointed” in 1988. Cruz corrected him and Dickerson tacitly admitted he’d made a blooper by following up with the “appointed” correction. But he did originally misspeak, and Cruz pointed that out, attempting to trip him up. He didn’t get tripped, because he, too, is a smart guy. Kudos to both.

        gothamette

        February 14, 2016 at 5:36 pm

      • I’m sorry but you’re about to crash into a solid wall of reality. Here’s the transcript:

        CRUZ: Well, we have 80 years of precedent of not confirming Supreme Court justices in an election year. And let me say, Justice Scalia…

        DICKERSON: Just can I — I’m sorry to interrupt, were any appointed in an election year or is that just there were 80 years…

        (CROSSTALK)

        CRUZ: Eighty years of not confirming. For example, LBJ nominated Abe Fortas. Fortas did not get confirmed. He was defeated.

        DICKERSON: But Kennedy was confirmed in ’88.

        CRUZ: No, Kennedy was confirmed in ’87…

        DICKERSON: He was appointed in ’87.

        CRUZ: He was appointed in…

        DICKERSON: … confirmed in ’88. That’s the question, is it appointing or confirming, what’s the difference?

        CRUZ: In this case it’s both. But if I could answer the question…

        DICKERSON: Sorry, I just want to get the facts straight for the audience. But I apologize.

        (BOOING)
        ___________________________
        Cruz was wrong. Dickerson apologized for interjecting to set the record straight (and the audience booed him for it).

        Vince

        February 14, 2016 at 6:50 pm

      • If Obama nominates the Indian-American who was confirmed unanimously to the DC Circuit Court, it will be interesting to see what excuses McConnell can invent.

        He doesn’t need to “invent” an excuse. And the fact that a nominee is Indian American might be good politics but it has nothing to do with legal procedure.

        McConnell can and should withhold a confirmation hearing.

        If a Democrat wins they can nominate Obama or whomever they want and they might have a Democrat majority Senate as well.

        Or……………..President Trump can nominate a conservative to be quickly confirmed.

        Rifleman

        February 14, 2016 at 9:12 pm

      • Thank you, Vince. That really means a lot to me.

        Meanwhile, here is a reasonably nice article about Scalia:

        http://www.nytimes.com/2016/02/15/nyregion/in-queens-antonin-scalia-took-pride-in-melting-pot-and-confrontation.html?rref=nyregion&_r=0

        It’s unbelievable – he’s from Queens. Trump’s from Queens. The Ramones were from Queens.

        gothamette

        February 14, 2016 at 10:31 pm

      • And the fact that a nominee is Indian American might be good politics but it has nothing to do with legal procedure.

        The fact he’s Indian is not the salient point; it’s that he was confirmed unanimously.

        If a Democrat wins they can nominate Obama or whomever they want and they might have a Democrat majority Senate as well.

        People keep bringing this up for no reason at all. We’re not talking about a Bush White House that would nominate Harriet Myers (good Lord, what a joke). Obama — not Clinton, not Sanders — can nominate qualified jurists. Republicans have already said they would delay and reject, not out of any principled reason — they just don’t want to lose the Court. This refrain is understandable, but weak.

        Democrats (and everyone) should slam them on it — repeatedly. It will take more than 11 months to swear in a new Republican president, and then a confirmation hearing will last however long it lasts. McConnell’s already said stupid shit about how the “people” should get to decide, as if the sitting President had not been elected twice. Hillary Clinton is arguably the biggest winner here.

        Vince

        February 15, 2016 at 12:30 am

  7. Do you think an Originalist would say the “Advice and Consent” clause includes obstructing and rejecting every candidate the president presents to the Senate until the president’s term expires? A Senate of the opposite party could block candidates for a president’s entire four-year term. I don’t think the Framers considered or would have welcomed that possibility. Just because some partisan maneuver is technically legal doesn’t mean it is in accord with our long-standing and deeply rooted American traditions.

    Mark Caplan

    February 14, 2016 at 1:28 pm

    • The S.Ct. would say it’s a “political question” that’s outside of the scope of the Supreme Court’s purview. That’s the established law.

      Lion of the Blogosphere

      February 14, 2016 at 1:47 pm

    • If the president and the president’s nominee desire to thwart and crush “deeply rooted American traditions”, then what?

      The last four presidencies we have had (Bush I, Clinton, Bush II and Obama) have all wanted to submerge the historic American people under a Third World tide…the faces change, the policies remain the same.
      Let’s stop playing nice and by the rules…we have been losing via that strategy.
      Trump convinced me last night: he’s the only guy who has strength, all the rest are losers.
      No Obama nominee for the court should be approved. We should wait until after the election.

      FB (Former Beta)

      February 14, 2016 at 6:10 pm

  8. Some are suggesting that Obama will go with Jeh Johnson as a sort of compromise candidate, hoping to get him through. As soon as the news about Scalia was announced various Republican Senators started tweeting that they will pull out all the stops to block any Obama appointee.

    Jeh Johnson is a Democrat but not necessary a far leftist ideologue.

    Camlost

    February 14, 2016 at 1:32 pm

    • He’s a politician and not a legal scholar. He’s no Thurgood Marshall, who may have been an extreme liberal, but he succeeded back in a time when there was no affirmative action and, in fact, there was active discrimination against blacks. Marshall graduated top of his class at Howard, back when Howard had much brighter black students, because today the brightest black students go to Ivy League schools instead.

      As a politician, Johnson will vote with the other Democratic-appointed Justices on all issues that matter.

      Lion of the Blogosphere

      February 14, 2016 at 1:54 pm

      • Yeah good point, Jeh Johnson would surely drop any semblance of moderation or pro-law and order sentiment once on the court. The GOP Senators will surely perceive that and oppose his appointment.

        Camlost

        February 14, 2016 at 2:06 pm

  9. Republicans will lose on this issue. While they can vote down Obama’s nominees they are on shaky ground to claim Obama’s nominees shouldn’t be considered. Clearly Obama has the right to nominate a SCOTUS justice in case of a vacancy. He still has 11 months left of his presidency. He won the 2008 and 2012 election and Supreme Court nominees were one of the issues Dems and GOP campaigned on. Furthermore Obama nominated Kagan and Sotomayor in his 1st term so electorate knew Obama’s SCOTUS preferences when they elected.

    GOP is being shortsighted. With a vacant court the election will become a referendum on abortion rights and gay rights. two issues that favor the Democrats.

    Jimi

    February 14, 2016 at 1:38 pm

  10. There is a rumor that Ruth Bader Ginsburg was going to retire this summer. She wants to be known as the longest serving Jewish Justice and this summer she would have surpassed Brandeis’ time on the Court . If she retires Obama would get to nominate 4 SCOTUS justices.

    McConnell may be refusing to consider Obama’s nomination as a ploy to deter Ginsburg from retiring this summer.

    Jimi

    February 14, 2016 at 1:54 pm

    • The GOP should encourage Ginsburg to retire and then promise Obama that they will rubber stamp any liberal candidate Obama puts forth to replace her. It would be hard to find a nominee who’s done as much liberal destruction to the constitution as her.

      Camlost

      February 14, 2016 at 2:04 pm

      • GOPe is out of touch with realty. They think they will definitely win the 2016 election because America hates Obama so much.

        Jimi

        February 14, 2016 at 2:17 pm

  11. I don’t think it will really be THAT difficult for Obama to appoint a moderate, agreeable judge if he puts some effort into it. I mean, he’s appointed several moderate, agreeable cabinet members who were easily confirmed by the Republican senate.

    The key is picking someone with a strong pedigree within the Washington establishment. John Kerry whizzed through his confirmation as secretary of state because everyone in Washington loved him, even though most of America sees him as a loser who they didn’t want to be president. One could easily imagine a Lindsey Graham type sailing through. Someone who Republicans will like for being a Republican and Democrats will like for being something of a non-Tea Party free thinker.

    The trouble is, I think Obama’s obsession with affirmative action and symbolism means he will pick a woman or minority. And the fact is, there just aren’t that many women or minorities in positions of high enough power for them to be well-known and uncontroversial in the eyes of the Washington establishment, particularly the GOP establishment.

    Shep

    February 14, 2016 at 2:31 pm

    • I don’t think it will really be THAT difficult for Obama to appoint a moderate, agreeable judge if he puts some effort into it. I mean, he’s appointed several moderate, agreeable cabinet members who were easily confirmed by the Republican senate.

      Cabinet members are there a few years; Supreme Court justices are there for decades, so stakes are much much higher. Obama and Cruz both have every reason to go nuclear and fight to the death over this. If Obama and Cruz really commit themselves to this struggle it could make them heroes to their respective parties.

      Gozo

      February 14, 2016 at 4:05 pm

      • Oops, first para was a quote of Shep, second para my response.

        Gozo

        February 14, 2016 at 5:15 pm

      • I don’t know…. Obama got an FBI and CIA director confirmed, as well as a new chair of the Federal Reserve, and they all serve for life, as far as I know.

        On some issues, the Senate GOP just subscribes to its own establishmenty conventional wisdom, one of which being “presidents should have their nominees approved.” This time MAY be different, given how juicy this particular appointment is, but I would never bet against the Senate GOP’s ability to sell out in the end.

        Shep

        February 15, 2016 at 10:27 am

  12. So what’s the plan if dems retake the Senate, a real possibility. Tell President Crump to shove it in return?
    Partisan jackassery is the death of republics. It’s all in Federalist No. 10.
    What’s scary is the present fools and knaves is still a better government than we deserve, although it’s disintegrating exponentially.

    Skip Foreplay

    February 14, 2016 at 3:15 pm

  13. Too much is at stake if the Supreme Court switches from conservative to liberal, and there’s less than a year until Obama leaves office.

    And Obama is in the pocket of ISIS and the Muslim Brotherhood. If the president were a Democrat like William Jennings Bryan I would be willing to give him the benefit of the doubt.

    The Undiscovered Jew

    February 14, 2016 at 5:43 pm

  14. “My reasoning was that Obama is only going to nominate liberals to the court and those two weren’t the worst liberals possible.”

    In light of how they have performed on the court since, I can only think of Charles Schumer and Hillary Clinton as worse choices.

    Truth

    February 14, 2016 at 6:09 pm

    • Neither is as good for liberals and bad for conservatives as Ruth Bader Ginsburg.

      Lion of the Blogosphere

      February 14, 2016 at 8:04 pm

      • Perhaps true of Kagan but why do you say that of Sotomayor? There have 8-1 decisions in which only Sotomayor was willing to adopt the liberal position. Also she doesn’t appear to be very bright (by Supreme Court standards) which probably makes her a more reliable liberal vote long term.

        James B. Shearer

        February 14, 2016 at 8:22 pm

  15. It really shouldn’t be any problem if the Republicans keep their wits about them. The Majority Leader (Republican Mitch McConnell) sets the Senate’s agenda. It seems inconceivable that his GOP colleagues would desert him on such an important issue. The Democrats will fume and bluster, but it’s just politics as usual, and, if the roles were reversed, they would do exactly the same thing. It seems likely that Trump will be the nominee, and I expect he will win, if only because the Democrats have a weak bench, and it’s extremely difficult for either party to win three presidential elections in a row (happened only once since WW II). I’m hoping that Trump will have enough pull to keep Republicans in control of the Senate.

    Hope you had a nice Valentine’s Day.

    Black Death

    February 14, 2016 at 6:26 pm

  16. Yes, Reagan nominated Kennedy in November 1987, but he had a Republican Senate

    He did not. D’s retook the Senate in the 1986 midterms.
    https://en.wikipedia.org/wiki/United_States_Senate_elections,_1986

    Fiddlesticks

    February 14, 2016 at 7:20 pm

  17. “Those ruckuses were huge strategic mistakes, Republicans should have saved the firepower for truly important issues”

    I completely agree. Shutting down the government over Obamacare is one of the reasons the GOP has been rolling over on every issue since. The only way they had of stopping that last budget deal was to shut down the government. But they wouldn’t do it again because of the backlash they got last time. They wasted their ammo grandstanding on Obamacare. And that asshat Cruz was the one who did it.

    But it’s different this time. Obama ran on a platform of fundamentally transforming America. And a lot of his policies have been overturned by SCOTUS as unconstitutional. It’s obvious that he would try to stack the deck 5-4 with leftists who will rubber-stamp everything he wants to do in his final year and interfere with the next administration as well. As soon as Obama appoints a justice he’ll open the immigration floodgates and do an executive amnesty so millions of illegals can vote in the election. And a leftist supreme court will sign off on it.

    Everything Obama wants to do is anti-American. I would call him a traitor but treason implies he was ever American to start with.

    destructure

    February 14, 2016 at 7:51 pm

  18. What kind of constitutional reforms of the Supreme Court would you like to see? Given that they granted themselves the power of judicial review you sort of have to accept that it’s the worst thought out branch. What I mean by that either the Supreme Court fixed the constitution by giving themselves the power that should have been in the constitution or they ruined constitution and the constitution made it impossible for other branches to stop them.

    I think overturning things on constitutional ground should require unanimous 9 person decisions, that they should be forced to hear every appeal, that there should be multiple 9 person bodies to handle the caseload, and that they be forced to write their own decisions. I’m curious what people with more knowledge of the issue would like to see.

    Lloyd Llewellyn

    February 14, 2016 at 9:10 pm

    • Steve Sailer suggests moving them out of Washington which I also like.

      Lloyd Llewellyn

      February 15, 2016 at 12:36 pm

      • That’s probably the one politically achievable reform that would accomplish the most good, long-term.

        Richard

        February 15, 2016 at 2:12 pm

  19. There are six vulnerable Republican senate seats up in 2016. If Republicans obstruct an Obama appointment, that will probably cost the Republican candidates enough votes to turn the seats blue.

    Wisconsin is already lost for Republicans. Illinois, New Hampshire, and Florida are solidly pro-choice in presidential years and will elect Democrats to the Senate if they can make the Supreme Court the leading issue. That alone is enough to give Democrats the majority.

    With the majority in the Senate starting January 3rd, 2017, Democrats have seventeen days before the new president is inaugurated on January 20th to confirm Obama’s appointment at their leisure.

    Therefore the only thing Republicans can accomplish by blocking Obama’s justice is to lose themselves the Senate.

    Republican senators don’t want that.

    Therefore Republican senators will confirm an Obama justice as soon as it’s safe. Probably when their primaries are over in the early summer.

    owentt

    February 14, 2016 at 9:12 pm

    • “With the majority in the Senate starting January 3rd, 2017, Democrats have seventeen days before the new president is inaugurated on January 20th to confirm Obama’s appointment at their leisure.”

      The Republicans can filibuster for 17 days.

      Lion of the Blogosphere

      February 14, 2016 at 9:59 pm

      • Republicans won’t be able to filibuster at all because the filibuster for judicial appointments is hanging by a thread — abolished at every level below the Supremes already — and will be gone immediately.

        owentt

        February 15, 2016 at 8:14 am

  20. Lion, I’m curious about what you mean when you say “too much is at stake.” I know that mainstream conservatives think too much is at stake because they hope for the overturn of Roe v. Wade, or the same-sex marriage case, or they worry a liberal Supreme Court might go along with banning guns, while liberals are up in arms about Citizens United, or that recent global-warming-related case, and think that the court is perilously close to turning America into a fascist theocracy or some nonsense like that. But to my knowledge you don’t fit into either of those categories, so what specifically do you think is at stake?

    Hermes

    February 14, 2016 at 9:39 pm

  21. Can the Republican Senate just dawdle and delay things until the election result looks inevitable?

    It’ll probably take President Barry a few weeks to pick and vet a candidate. That takes us to the middle of March. Then the confirmation process commonly takes 3 months taking us through June…
    The big party conventions are in July… Maybe even contested…

    The Summer is guaranteed to be hot….

    Thin-Skinned Masta-Beta

    February 14, 2016 at 9:43 pm

  22. You heard it from the Masta first.

    There aren’t any Asians on the SCOTUS.

    Another way Barry O could be “historic”

    Thin-Skinned Masta-Beta

    February 14, 2016 at 10:13 pm

  23. Republicans have an uphill battle to get the Presidency.

    If Obama nominates a true moderate, and somebody 75+, then the Republicans ought to confirm. Better to punt now than wait for Hillary to put Sandra Fluke on the Court.

    But he will not, so the point is moot.

    Rotten

    February 14, 2016 at 11:56 pm

  24. I disagree. I think the Republicans are so used to not fighting that they don’t know how to win. They need to fight more. Always fight. Gain that experience of how to win. There is no saving the fight for another day. Another day will be too late. Republicans are in the midst of their last fights. Immigration has overwhelmed them with new Democrats. They don’t have much time left. So go ahead and fight like every fight is your last.

    Dave

    February 15, 2016 at 4:44 am

  25. What exactly has the “conservative” court done that is so great for conservatives? At least from an alt-right perspective? Did it stop gay marriage? No. Did it put the brakes on immigration? No. In any meaningful way restrict the powers of the imperial Presidency? Yes, the court managed to get Dubya seated as President instead of Gore, but over the long term that action probably did the Right no favors. The current court has been reliably pro-corporate interests but not necessarily “conservative”.

    Peter Akuleyev

    February 15, 2016 at 7:12 am

    • The Supreme Court does a lot more than decide abortion cases. You need to look at EVERY case over the last THIRTY years in which the court split between liberals and conservatives, and imagine what things would be like if the liberals one those cases. The difference would be HUGE I assure you.

      Lion of the Blogosphere

      February 15, 2016 at 10:32 am

      • Did any of those cases have anything to do with putting HBD bloggers in jail which is what you say is the most important?

        Lloyd Llewellyn

        February 16, 2016 at 5:50 pm

  26. The Republicans lost the past 2 elections. For good reason. Maybe win next time and you can nominate who you want. Don’t be a sore loser now.

    ModernReader

    February 16, 2016 at 8:29 pm


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