SCOTUS Nomination Battle

[Habib]

I figure since this will go on for a while and I don't want to take away from the thread on Scalia we can post in here about the politics of it and/or who it's going to be.

[Clyde]

Good idea.

 

As I just posted in that thread I don't get why people believe the President, with 11 months remaining in his term that he was elected to, should pass on putting forth a nominee.

 

Defies logic.

[Habib]

These are a few thoughts on the possibilities before us. Prediction is a fool's game, but I'll make a guess at the end.

 

It’s not surprising that Republicans have already claimed they will not confirm an Obama nominee to the Court and will instead wait until the “next president.” We also know that Obama will nominate someone. While gridlock seems in store for us, this situation is strategically complex for a lot of reasons.

 

Republicans say they believe the “next president” should be the one whose nomination is confirmed, but they almost certainly mean the “next Republican president.” The reality is that the next president very well could be Clinton (or less likely, but still possible, Sanders). Perhaps Republicans consider it a push whether Obama or Clinton makes the appointment and would rather spite Obama or at least keep the issue alive for the election, hoping for something to galvanize their turnout.

 

But, assuming a Democrat wins the presidency, it’s also quite likely that the Senate will flip back to the Democrats as well, giving a president Clinton/Sanders much wider latitude in who they appoint. In the event Senate Republicans sense that this is likely, they would be unconscionably foolish not to get the best candidate they can while they control the Senate.

 

The other issue is that the Republican nominee won’t be known for a while, but the debate over the SCOTUS appointment will start immediately (it has already started, we just don’t have a pick from the president yet). Two of the candidates are sitting Senators, and one who is particularly loathed by the party is on the Judiciary Committee.

 

I don’t think the Republicans will be willing or able to strike a deal right away because the presidential campaign will put too much focus on it and all but guarantee a Trump/Cruz victory for the nomination. I also don’t think the “establishment” will want to give Cruz an elevated platform during a SCOTUS nomination fight. A nomination hearing would give Cruz major face time to square off against the appointee (considering Cruz’s vile performance during Hagel’s hearing I’m sure he would pull out all stops) and he could frame himself as a zealous crusader during his campaigning.

 

So, at the very least, I imagine the Senate leadership will stall a hearing until Cruz’s candidacy is decided one way or another, which might not be until the summer. (I suppose a lengthy hearing process could pull him off the trail too, but that seems like a major gamble.)

 

This brings up another problem. Stalling a confirmation hearing will play directly into Democratic complaints that Republicans have done nothing but obstruct Obama’s presidency. And Republicans have already come out to say no matter who the appointee is they aren’t willing to play ball, which removes any rhetorical cover they could give themselves over their motives (e.g. “the president nominated someone unqualified”). This obstruction also takes on a new significance during a presidential election and could electorally hamstring the Republicans across the board. “We refuse to do anything unless you elect the president we want or kick us out of office.” That’s not a compelling campaign slogan.

 

On top of this, the Supreme Court will release a string of rulings this summer. Frankly, I have no idea what the state of their opinions are in and how Scalia’s sudden absence will affect them. But 4-4 rulings will underscore the fact that a justice is missing. Even more so will be when the fall session begins in October with a vacant seat. This will underscore the vacancy and unwillingness of Republicans to make a deal.

 

On the other side, Obama has decisions to make. He could try to either get his A1 appointee confirmed, he could try to hedge the risk of a Republican president making the pick and nominate a centrist who might have a chance to get confirmed, or he could attempt to force the Republicans into the above predicament. There are a lot of ways of getting to each.

 

If he comes straight out with a strong liberal he could challenge Republicans into trying to stall for a full year, including all the way through the election. Yet such a strategy can galvanize Republican candidates and send a message to voters that Obama is the unreasonable one and Republicans are being rational.

 

He could also open with a strongly liberal choice as a negotiating gambit, where he would rescind and follow-up with a more moderate choice, but one he still prefers. He would get beaten up on the first pick, but then he second pick would in turn appear more sensible and the forthcoming Republican obstruction unprincipled.

 

If he wants to make the appointee no matter what he can come right out with a centrist candidate and hope Republicans come to the table by the summer to hedge against a president Clinton making the appointment.

 

It’s something like a prisoner’s dilemma. The optimal outcome is to appoint a moderate justice right away. Each side gets some of what they want, but neither side gets their vision of a disaster. The best/worst case scenario for each side is to wait until after the election. We will either get a fierce progressive on the Court, a disaster for the Republicans but major victory for Democrats, or another Alito, a major Republican victory and disaster for the Democrats. Yet, getting to the optimal outcome presupposes Republicans would be willing to deal, and we know that negotiating with Congressional Republicans is like negotiating with a crying child in the candy aisle: You either give them all the candy they want or you drag them along, and Democrats are in no position to do either right now. So, I’m not sure what will happen, but my foolish guess is we won’t see a new SCOTUS appointee until next year, late summer at the earliest if Republican electoral chances look slim.

[DragonFire]

These are a few thoughts on the possibilities before us. Prediction is a fool's game, but I'll make a guess at the end.

 

It’s not surprising that Republicans have already claimed they will not confirm an Obama nominee to the Court and will instead wait until the “next president.” We also know that Obama will nominate someone. While gridlock seems in store for us, this situation is strategically complex for a lot of reasons.

 

Republicans say they believe the “next president” should be the one whose nomination is confirmed, but they almost certainly mean the “next Republican president.” The reality is that the next president very well could be Clinton (or less likely, but still possible, Sanders). Perhaps Republicans consider it a push whether Obama or Clinton makes the appointment and would rather spite Obama or at least keep the issue alive for the election, hoping for something to galvanize their turnout.

 

But, assuming a Democrat wins the presidency, it’s also quite likely that the Senate will flip back to the Democrats as well, giving a president Clinton/Sanders much wider latitude in who they appoint. In the event Senate Republicans sense that this is likely, they would be unconscionably foolish not to get the best candidate they can while they control the Senate.

 

The other issue is that the Republican nominee won’t be known for a while, but the debate over the SCOTUS appointment will start immediately (it has already started, we just don’t have a pick from the president yet). Two of the candidates are sitting Senators, and one who is particularly loathed by the party is on the Judiciary Committee.

 

I don’t think the Republicans will be willing or able to strike a deal right away because the presidential campaign will put too much focus on it and all but guarantee a Trump/Cruz victory for the nomination. I also don’t think the “establishment” will want to give Cruz an elevated platform during a SCOTUS nomination fight. A nomination hearing would give Cruz major face time to square off against the appointee (considering Cruz’s vile performance during Hagel’s hearing I’m sure he would pull out all stops) and he could frame himself as a zealous crusader during his campaigning.

 

So, at the very least, I imagine the Senate leadership will stall a hearing until Cruz’s candidacy is decided one way or another, which might not be until the summer. (I suppose a lengthy hearing process could pull him off the trail too, but that seems like a major gamble.)

 

This brings up another problem. Stalling a confirmation hearing will play directly into Democratic complaints that Republicans have done nothing but obstruct Obama’s presidency. And Republicans have already come out to say no matter who the appointee is they aren’t willing to play ball, which removes any rhetorical cover they could give themselves over their motives (e.g. “the president nominated someone unqualified”). This obstruction also takes on a new significance during a presidential election and could electorally hamstring the Republicans across the board. “We refuse to do anything unless you elect the president we want or kick us out of office.” That’s not a compelling campaign slogan.

 

On top of this, the Supreme Court will release a string of rulings this summer. Frankly, I have no idea what the state of their opinions are in and how Scalia’s sudden absence will affect them. But 4-4 rulings will underscore the fact that a justice is missing. Even more so will be when the fall session begins in October with a vacant seat. This will underscore the vacancy and unwillingness of Republicans to make a deal.

 

On the other side, Obama has decisions to make. He could try to either get his A1 appointee confirmed, he could try to hedge the risk of a Republican president making the pick and nominate a centrist who might have a chance to get confirmed, or he could attempt to force the Republicans into the above predicament. There are a lot of ways of getting to each.

 

If he comes straight out with a strong liberal he could challenge Republicans into trying to stall for a full year, including all the way through the election. Yet such a strategy can galvanize Republican candidates and send a message to voters that Obama is the unreasonable one and Republicans are being rational.

He could also open with a strongly liberal choice as a negotiating gambit, where he would rescind and follow-up with a more moderate choice, but one he still prefers. He would get beaten up on the first pick, but then he second pick would in turn appear more sensible and the forthcoming Republican obstruction unprincipled.

 

If he wants to make the appointee no matter what he can come right out with a centrist candidate and hope Republicans come to the table by the summer to hedge against a president Clinton making the appointment.

 

It’s something like a prisoner’s dilemma. The optimal outcome is to appoint a moderate justice right away. Each side gets some of what they want, but neither side gets their vision of a disaster. The best/worst case scenario for each side is to wait until after the election. We will either get a fierce progressive on the Court, a disaster for the Republicans but major victory for Democrats, or another Alito, a major Republican victory and disaster for the Democrats. Yet, getting to the optimal outcome presupposes Republicans would be willing to deal, and we know that negotiating with Congressional Republicans is like negotiating with a crying child in the candy aisle: You either give them all the candy they want or you drag them along, and Democrats are in no position to do either right now. So, I’m not sure what will happen, but my foolish guess is we won’t see a new SCOTUS appointee until next year, late summer at the earliest if Republican electoral chances look slim.

 

A compromise? A novel concept for either side of the political arena these days.

 

[LIPTON BASH]

There will be no confirmation in 2016 it would be political suicide for the GOP with their base. There will be a lot of bickering back and forth between the parties but there is no way a confirmation will happen.

[MayfieldFan]

Good post @Habib. I like how the Republicans have come out against any nominee before he has even named one. Will make it difficult for them to ever claim that they are going to give someone a fair shake.

 

Can the president nominate someone and then withdraw the nomination? He could nominate Cruz just to mess with him lol.

 

Jokes aside, the Senate is in recess, he could do a recess appointment..maybe. I don't pretend to know the rules on those. I know it wouldn't be a permanent replacement.

 

I think this is gonna work out to the Democrats benefit. Dems will get fired up over the obstructionism, heck I already am. Conservatives won't be affected cause they already planted the flag in sillyland long ago. Independents will likely see the obstructionism for what it is. Yet another nail in the coffin of the republicans.

[LOOGY]

Whoever the president nominates the GOP will automatically try to block it. Doesn't matter who it is

[Habib]

How the politics of the next nomination will pay out : SCOTUSblog

 

Here's a more granular and refined prediction of what's in store. The author predicts AG Loretta Lynch will be the first nominee, will not be confirmed, then Republicans will refuse further hearings as the election nears. I don't know that LL is a possibility, but it makes sense. Both parties come away thinking they're going to drive their bases to the polls in November and the seat remains vacant indefinitely.

[CBDV]

If the Dems go for a moderate, they will get them.

 

They will not go for a moderate.

[Hellcats]

In my opinion democrats fill the seat by August with a centrist.

 

That's win-win for the blue team. Scalia was conservative, so you've swung the court at least half of the time. You've spent all summer proving McConnell and the gang are wasting time in Washington. GOP can't use the Supreme Court as a primary driving factor by November.

 

The red team has some problems. Prevent defense will create several holes the democrats will be able to exploit, but worst is what if Clinton or Sanders win? (TBH do Republicans want Trump naming a justice?)

 

Momentum of a win and maybe a Senate to go with, and all of sudden Hillary can't put Bill in or Obama or Bernie can put Hillary in.

 

I can see some of you guys having nightmares over this.

[capt278]

Whoever the president nominates the GOP will automatically try to block it. Doesn't matter who it is

 

As would the Dems if there was a Repub in the White House.

[cammando]

There hasn't been an appointment during an election year in over 80 years.. I doubt there will be one in this cycle..

[ggclfan]

If Obama appoints someone "reasonable", the R's should allow the appointment. If they win the White House in 2016, the new president will certainly get to replace Ginsburg in the next 4 years...she's about 100, isn't she? Then they can pretty much even it out. A couple of others are getting up there in age too. The key for the R's is to win the presidency in 2016.

[ggclfan]

There hasn't been an appointment during an election year in over 80 years.. I doubt there will be one in this cycle..

 

I am curious...how many times has a SC justice retired or died during an election year in the last 80 years? My guess is not many at all...

[Clyde]

There hasn't been an appointment during an election year in over 80 years.. I doubt there will be one in this cycle..

 

When was the last time this situation came about?

 

Clarence Thomas was about 15 months prior to the 1988 election.