Sunday, August 28, 2011

Sunday Question for Liberals

What do you think will happen if a Supreme Court Justice resigns or dies sometime in the next twelve months?
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Posted by Jonathan Bernstein at 1:26 PM
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22 comments:

  1. AnonymousAugust 28, 2011 at 1:32 PM

    Obama will nominate the most moderate possible candidate, Republicans will filibuster, liberals will throw their hands up, Obama's poll numbers will go down when he can't fill the seat, and the process will be stalled until after the election.

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  2. Bullied PulpitAugust 28, 2011 at 1:32 PM

    If it is a liberal justice, the fight will be epic, but the new nominee will ultimately be confirmed. If the justice that dies/resigns is from the conservative majority, I don't see any way anyone Obama nominates could get confirmed. I can't imagine anyone left of center getting 60 votes to replace Scalia or Kennedy (the two most likely to go, as I see it).

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  3. AnonymousAugust 28, 2011 at 1:35 PM

    Oh and the rationale for choosing his nominee will be totally unclear because, out of fear of criticism by Republicans, he will offer almost no defense of his choice or outline the principles by which he made it.

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  4. Lester FreamonAugust 28, 2011 at 1:53 PM

    Republicans will filibuster and Democrats will trigger the nuclear option.

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  5. CharlesAugust 28, 2011 at 1:55 PM

    What #1 said. I don't think it matters who they were replacing - there is just no chance that this Senate would agree to confirm anyone.

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  6. AnonymousAugust 28, 2011 at 2:15 PM

    Agree with Mr. Freamon. If the R's filibuster a nominee, the Left will trigger the nuclear option, and judicial nominees will be confirmed by a straight majority vote from then on, per the new precedent.

    And the 12 vulnerable Senate Democrats will come under a withering assault in the 2012 election, as there will be no filibuster to protect their hides. They will take that vote, on the Obama/Holder nominee, and their opposition will do what we all know they'll do with it.

    There's a chance for a minor kerfuffle, if the Maine sisters or Lindsay Graham vote for the nominee, but not much of one. I think Snowe and Graham are suitably intimidated at this point, and won't embolden a potential primary challenge.

    And after 1/20/13, the upshot is that President Perry will be nominating the most firebreathing conservative nominees currently breathing, using the 52-58 seats he'll have available to get those nominees through.

    This is another example of Obama's incompetence. He should have sought bipartisanship early on in terms of public policy, and confronted on the judges, and blown up the filibuster early on if it was going to be done. I believe the electorate would have understood that, and it might have been a plus in the 2010 election. He would have acquired a more Left-friendly set of nominees, in any event.

    He's confronted where it's hurt him, and failed to confront where it might have helped him. And mistimed confrontation now is likely going to hurt him. He's just inexperienced and rudderless, it seems. No judgement. No strategic sense.

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  7. AnonymousAugust 28, 2011 at 2:38 PM

    There's no way he appoints a liberal. He'd try to appoint a moderate Republican, only to get filibustered anyway.

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  8. beckya57August 28, 2011 at 3:24 PM

    Depends on which justice they're replacing. If it's one of the "liberals," the GOP will engage in some unpleasant name-calling, but ultimately will allow confirmation. If it's one of the right-wingers, however, we'll see the mother of all filibusters, and unlike some of the other commenters above I don't see the Dems going nuclear: they'd be crucified in this environment, and they know it. We'll have 8 SC justices and endless split decisions that don't solve anything. There's absolutely no way the GOP allows Obama to replace one of those 5.

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  9. JazzbumpaAugust 28, 2011 at 3:29 PM

    I agree with the general thrust of the comments, thought i fear they may be a bit optimistic.

    JzB

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  10. AnonymousAugust 28, 2011 at 3:32 PM

    Depends on whether the justice being replaced is on the conservative or liberal wing of the court. If the justice is liberal I'd expect another relatively bland nominee who will vote with the liberal wing consistently. If the justice is conservative then the pick has the potential to swing the balance of power and expect Republicans to throw a fit regardless of who Obama picks. It would be a great time to hit the nuclear option, get a solid liberal on the court and rally the liberal base. Unfortunately I don't see Obama picking that public a fight that would damage his "above the fray post partisaness" or the Senate Dem leadership wanting to rock the boat before a tough election cycle. I'd say all bets are off if a conservative retires and the only guarantee is that it will be ugly.

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  11. TybaltAugust 28, 2011 at 3:58 PM

    Trying not to be too tiresomely cynical (as is my wont) I would say that regardless of who dies or resigns, Obama will nominate a moderate liberal with a thoroughly vetted record as a justice, who will be confirmed with a lot of fire and noise, but ultimately with 60 votes.

    This is not the fight the Republican Party wants to have right now. They have made the smart move twice now in taking a hard line with Sotomayor and Kagan but not dumping them.

    I will observe that no Senate Democrat is going to shrink from a confirmation battle or rather, that Obama is not going to put forth any candidate (at this juncture) whose record is liable to give heartburn to any Democratic senator.

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  12. KylopodAugust 28, 2011 at 5:03 PM

    I consider it unlikely that Scalia or Kennedy's seat will be vacated anytime during the rest of Obama's first term. While both are 75, they aren't known to have any serious health problems, and they aren't going to resign voluntarily while a Democrat is in the White House. Only Ginsburg, 78 and having undergone cancer treatments, looks vulnerable to resignation or death. The rest of the justices are young and/or healthy enough to be there for a while. I'd wager that Obama won't get to appoint more than one other justice, and if he does it will be to replace Ginsburg during his second term.

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  13. 21law on TwitterAugust 28, 2011 at 5:50 PM

    here's my proposal (and I don't hide behind the moniker Anonymous)
    nominate Goodwin Liu
    from WSJ:
    Norm Minetta, the former Transportation Secretary President George Bush and Commerce Secretary under President Bill Clinton, makes the opposite case:

    [C]ritics have attacked Liu based on ideological grounds, charging that he is a “radical” or “extremist” liberal. Any fair reading of Liu’s writings and speeches illustrates that he is a mainstream nominee who is intelligent, open-minded about different opinions and ideas and thorough in his scholarship. The list of people supporting Liu further contradicts the notion that he would bring a political agenda to the bench. The list includes prominent conservatives such as former federal appellate court judge and Whitewater prosecutor Ken Starr, former Republican Rep. Tom Campbell (Calif.), Ford administration Transportation Secretary William T. Coleman Jr., and school choice advocate Clint Bolick. All of these individuals believe that Liu would make an excellent judge.

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  14. AnonymousAugust 28, 2011 at 6:43 PM

    I will observe that no Senate Democrat is going to shrink from a confirmation battle or rather, that Obama is not going to put forth any candidate (at this juncture) whose record is liable to give heartburn to any Democratic senator.

    .

    I disagree on both counts.

    I believe every one of the 12 vulnerable Democrat Senate incumbents crave to shrink from a confirmation battle. In fact, they've been shrinking and hiding ever since they voted yes on ObamaCare, nearly 2 years ago. They've passed no budget in over 2 years, and they refused to deal with taxes before the November 2010 election, 2 actions which destabilized the Left to no end in that election, I believe. They've been cowering and hiding these past years, waiting out the storm, as we saw during the recent budget negotiations. I wouldn't expect that to change much.

    Now Obama on the other hand may press the issue, and nominate somebody like Liu as mentioned above. I think he fired his last bullet in that budget negotiation, had his bluff called, and his smart advisers know now that he's a dead duck, even if he doesn't. Some will want to damn the torpedoes, unmindful of reelection, and go the full seppuku, and use every bit of executive power and ram through every bit of executive initiated action they can, while they can... including judges.

    That means Liu could get through with 51 votes, and a bunch of those 12 vulnerable D's will be in deep trouble with the electorate, because the R's will make hay you may depend. Liu got put down originally because he was unqualified and unfit for the appeals court, and I think some mainstream D's even agreed on that.

    But if Obama sends that nomination up as a suicide mission, can those mainstream D's say no? That's the question.

    And on the other hand, it could strengthen those mainstream D's, if they voted no, and stood up to Obama. Interesting predicament.

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  15. DavidAugust 28, 2011 at 10:04 PM

    I think the Obama Administration will nominate someone to succeed that justice.

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  16. sanchkAugust 29, 2011 at 1:04 AM

    I think talk of Republican resistance is a little premature. If I had to make a prediction, I'd estimate that any resistance from Congress will be disproportionately dependent towards how close Republicans feel they are to declaring ObamaCare unlawful.

    If Republicans feel they have a sufficient chance of ruling the individual mandate unconstitutional (I think the minimum for 'sufficient chance' would be a situation with 3 in favor of repeal, 4 against repeal, and one on either side) then we'd see heavy retaliation to any judge short of one who would rule in their favor, regardless of the political position of the departing justice.

    If the ruling is clearly going to be against repeal, then I'd expect some grumbling, but a relatively straightforward nomination.

    I hope I get proven wrong; it would be sad for a major, life-long position on the Supreme Court to be filled based on a one time ruling in the short run on a matter of questionable legal importance for a political victory. Then again, Congress has shown a penchant over the last decade or so for threatening the long run to score short term political victories.

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  17. Ron E.August 29, 2011 at 5:31 AM

    Obama would, as usual, pre-compromise and nominate a moderate to moderate conservative candidate who he knows in advance can get at least 60 votes. The nomination would sail through surprisingly easily.

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  18. AnonymousAugust 29, 2011 at 5:48 AM

    Hillary Clinton.

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  19. ColbyAugust 29, 2011 at 8:12 AM

    If we're replacing a liberal, Obama nominates a liberal and it sails. The liberal will say moderate things (As everyone up to and including Bill Brennan has), and the left will have nervous feet, but ultimately the right won't care enough about "replacing a liberal with a liberal" (a problem they had in the Kagan and Sotomayor processes), and Mitch McConnell will correctly recognizes that no one actually votes on Supreme Court nominees. Thus, no serious fillibuster effort, and the nominee goes through.

    If it's a conservative being replaced, Obama nominates someone who is called a moderate, but will ultimately vote with the liberal bloc on everything important. The Democratic nominating process just does not include anyone with serious differences, and Obama clearly doesn't care enough about nominations to go out and find one. So we'll probably end up with someone like Merrick Garland, who everyone will claim is a moderate and point to his terrorism convictions, but who clerked for Bill Brennan.

    Will that fly? Hard to say. If it's early, the right may be too distracted by the primaries, and again, no one votes on the Court. Senate Dems may feel more empowered to tweak the filibuster, too; I don't expect an actual nuclear option, but enough greasing of the skids to get it through.

    If it's after the conventions, I would rather expect everyone to put down the sword and wait for the election, and whoever is President next January will get their way. But every Justice will do everything in their power to prevent a vacancy between July and November next year.

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  20. ColbyAugust 29, 2011 at 8:26 AM

    "a bunch of those 12 vulnerable D's will be in deep trouble with the electorate, because the R's will make hay you may depend"

    Well, they'll bitch and moan, but it won't really matter; people don't punish or reward Senators for their behavior in Supreme Court nomination fights. Anyone who is "convinced" by such Republican hay is already pissed over the economy.

    "Liu got put down originally because he was unqualified and unfit for the appeals court, and I think some mainstream D's even agreed on that."

    Well, maybe they agreed, but it isn't true. Liu's been an appellate litigator, a clerk for the DC Circuit and the Supreme Court, and a law professor. He's the former chair of the ACS, and was elected to the ALI. The only way you get more qualified is to already BE a judge. "Unqualified" was just empty rhetoric that even Republican senators couldn't back up when pressed.

    "And on the other hand, it could strengthen those mainstream D's, if they voted no, and stood up to Obama. Interesting predicament."

    No predicament at all- there's nothing but disincentives to defying the leadership in this circumstance. If you're not through the primary, you WILL get a challenge, and probably lose. If you're out, the money will dry up, the volunteer labor will go home, and if you're really on the knife's edge in your election, you'll lose.I mean, if you're really down or really up, it's not going to change anything, but if it's close, then the whole election will be fought at the margins. Even Ben Nelson needs to lock up every Democrat in Nebraska.

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  21. AnonymousAugust 29, 2011 at 10:25 AM

    Well, you're right, those 12 vulnerable D's will fight their elections at the margins.

    And that means you have to ignore the fierce partisans on your own side, and swing over to the Independents.

    That means you don't want to engage a knife fight confirmation battle over the likes of Liu. And yes, the electorate don't care about Sotomayor or the shapeless one that followed her, but they will care about Liu, and for good reason (and you've hit on it. To be qualified... you should already BE a judge... not an academic... and then we get to his controversial statements... well beyond any wise latina business, which was actually found quite charming by many).

    We are now moving into the period where a confirmation battle will form a perfect storm. Liu will get the Bork treatment, and I'd expect a full throated Teddy-like denunciation the day the nomination is announced. Who delivers it? That's a fun question. It can't be one of the old R greaseballs, because nobody likes them anyway. It'd have to be a newer member. And that would be just the start of the festivities. For the R's, it'd be a campaign of attrition, bleeding the Left's resources in an election year, inflicting political damage on them, while bolstering their own resources and coffers, and providing them some nice, fresh attack ammo. Recall Obama's campaign hustlers' statements about attacking Romney as "weird". Expect Liu to show up in many campaign advertisements, using that same framing. "Weird".

    I think you're giving too much weight to the hard Left's influence here. No smart politician will do so in this environment, not on the D side. And where is the hard Left gonna go? Nowhere, is the answer.

    Obama is their only hope here. If he ignores reelection and goes kamikaze, he may be able to pull some leftist dogma out of the hat... but in this case, he's gotta put those vulnerable senators at risk by doing so. He may just do so, but he would better serve the Left by sticking to managing the bureaucracy with a full on lefty tilt, better allowing the Left to fight rear guard actions for Congressional seats.

    Nobody wants a confirmation battle right now, I'd say. The likely departee would be Ginsburg, and she's clever enough to have arranged for her succession, with all parties, before her departure. I'd enjoy the fireworks of a battle, but I don't think I'd get to see one.

    But if one of these old geezers dies unexpectedly, all bets are off.

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  22. the classicistAugust 29, 2011 at 5:04 PM

    Next Supreme Court vacancy under a Democratic President, Mike Lee will become the new Paul Ryan.

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