7 ms·

A judge quoted in the article said, "my educated guess is nothing will happen before the next president is elected." Presumably he's talking about selecting a

A judge quoted in the article said, "my educated guess is nothing will happen before the next president is elected." Presumably he's talking about selecting a replacement to the supreme court. Is this accurate? How long does this process typically take?

aklemm 11y ago
That struck me as premature and unlikely. There's 11 months left in Obama's term, after all. That seems like enough to get a replacement in there.
scruple 11y ago
Well, considering that the Presidential election is this year... (the Republican) Congress will not confirm any nomination from President Obama before the election is over. So, I imagine that the appointment won't happen until after the election cycle. This makes the Congressional races a bit more interesting. edit/ Some words.
- aklemm 11y ago
  Won't they be under an awful lot of pressure considering it will be obvious they are obstructing normal business?
  - sbarre 11y ago
    Did you forget the /s tag at the end there?
    - aklemm 11y ago
      Hah, good point. But I guess the idea is that this is a major issue that will be in the spotlight. Tons of scrutiny and no way to cover what might be their obvious motives to avoid an appointment. The circumstances are extra-ordinary.
  - hwstar 11y ago
    No. Look what happened when Bush was president, and the democrats stalled the election of supreme court justices. The republicans control 53 senate seats, and can refuse to confirm any justice till they know the outcome of the presidential election. If Trump wins, they'll stall until he takes office. If Sanders or Clinton wins, then they will grudgingly confirm who Obama chooses with some limits.
    - LargeWu 11y ago
      To be fair, one of those was Harriet Miers, who was eminently unqualified for the position, and 100% deserved to be blocked.
      - myko 11y ago
        Another key point: the Democrats didn't say going into the nomination that no matter who Bush nominates they will reject. They were prepared to debate and decide on the nomination based on the merits of the nominee, not a blanket statement saying "we will not agree to anything, ever" - which is how the GOP has behaved during the Obama administration.
    - cowsandmilk 11y ago
      uhhhh... might want to check your facts on that one. Both Roberts and Alito went through on timelines similar to judges nominated by Reagan, H.W., and Clinton. The only nomination from Bush that faced extreme opposition was that of Harriet Miers, and that was from conservatives, not the democrats.
      - nwhitmore 11y ago
        Does the name Robert Bork mean anything to you?
        tptacek 11y ago
        Reagan nominated Bork, not GHWB.
  - scruple 11y ago
    I'm merely speculating as to why the Judge who was quoted said what he said. But, yes, of course. 10 months is a long time to stall a nomination. I don't know of any precedent in this situation.
  - PKop 11y ago
    I said this above, but I'll repeat: if they do not reject, their Republican base will revolt and not vote in the upcoming election. They will absolutely be expected to reject and oppose until Obama is out of office. There are 2 sides in the political game, remember. And since supreme court nominations are so important, and this changes the balance, voters will demand they reject his nominees.
    - ethbro 11y ago
      I don't know. Given the timetable and the fact that neither the Republican Party or voters can say who will win the presidential election, it seems like there would be room for a qualified, centrist candidate. Especially if Sanders and Trump stay in the race. Better the devil candidate you know, etc etc
    - hackuser 11y ago
      > if they do not reject, their Republican base will revolt and not vote in the upcoming election. The upcoming election is a general election; they need to appeal to more than their base. In the past year the Republicans in Congress have been trying to shed their obstructionist, irresponsible reputation as the party that shuts down government, holds the solvency of the U.S. hostage, etc.
      - 13thLetter 11y ago
        I wish them good luck with that, considering that the reputation of the GOP as uniquely obstructive in comparison with previous Congresses is purely a construction of media propaganda and is therefore not going to be overturned merely by their good behavior. (A Democratic Senate slow-rolled or blocked innumerable Bush judicial nominees, some for several years, and the Democratic Congress shut down the government several times under Reagan. Both sides have the power to do these things, and have exercised them freely in the past, and somehow the world continued to turn.)
        hackuser 11y ago
        > the reputation of the GOP as uniquely obstructive in comparison with previous Congresses is purely a construction of media propaganda I'm pretty sure that's not the case. For example, I know the recent GOP Senators used dramatically more fillibusters than anyone before. Also, I'm pretty that some basic fiscal issues like raising the debt limit weren't politicized before recently. > somehow the world continued to turn I think this is a dangerous belief. Actions, especially by the U.S. Senate, have serious consequences for millions to billions of people. The world merely continuing to turn is not a standard; there are serious problems in the world that need to be addressed well, or human welfare in the U.S. and elsewhere will suffer greatly.
  - SturgeonsLaw 11y ago
    This has been one of the most obstructionist congresses in recent history, far from being under pressure, I would call it business as usual for them.
nbadg 11y ago
Unlikely to be correct re: nomination, though it's difficult to know how the election will effect the confirmation process, and vice versa. Kagan was nominated May 2010 and confirmed August 2010; Sotomayor was nominated May 2009 and confirmed August 2009. I'm inclined to expect a nomination sooner rather than later, potentially of a candidate with very strong Democratic support. If Republicans oppose the nomination, that could be used as political leverage against them during the election. Edit for some further thoughts: I could see this play out several different ways. Dems could potentially stall on the nomination, to maximize the "gamesmanship" rhetoric leverage of any Republican opposition to the nomination. But if the nominee were confirmed by June, the whole thing might be largely forgotten by the election in November. So potentially, we could see a very quick confirmation. This definitely is a massive boon to the Democratic party; they've just been handed a wildcard and have every ability to choose exactly how to play it. I'm no fan of dehumanizing death, but Scalia's death will have enormous ramifications. Keep in mind: 1. Burwell v Hobby Lobby (private corporate responsibility for birth control re: Obamacare) was 5-4 2. Legal pragmatism arguments against criminal justice matters under equal protections grounds have already been very close to succeeding (or actually have). Could mean the end of the death penalty in the US. 3. Scalia opposed Guantanamo inmates' ability to challenge their detention in US Courts in the Boumediene v Bush decision 4. Scalia consistently opposed expansion of national healthcare 5. Citizens United was 5-4 with Scalia supporting the decision (this is what created superPACs), so potentially this could result in a limitation of corporate personhood 6. Potential liberalization and modernization of intellectual property rules, particularly in context of software (see: denial of certiorari of https://en.wikipedia.org/wiki/Oracle_America,_Inc._v._Google,_Inc. https://en.wikipedia.org/wiki/Oracle_America,_Inc._v._Google...) Further edit: SCOTUSblog analysis on the political situation: http://www.scotusblog.com/2016/02/first-reactions-on-the-passing-of-justice-scalia/ http://www.scotusblog.com/2016/02/first-reactions-on-the-pas...
- PKop 11y ago
  OK, but if they do not oppose, their supporters will not support them in the election. They have a duty and obligation to oppose.
  - 11y ago
tunesmith 11y ago
Seems like it usually takes a month or two for presidents to appoint someone new, and this might be affected by the supreme court's schedule, too. The game theory of this is interesting, for instance, what if Obama nominates someone that is seen as more moderate than someone that Hillary or Sanders would nominate?
- xbmcuser 11y ago
  I will be shocked if Hillary nomination is more liberal than Obama's. Hillary is a conservative in Democrats clothing currently she is spouting liberal agenda to get the nomination once elected whe will go for conservative options under the umbrella of getting things done.
  - bmelton 11y ago
    Warning: Rhetoric and opinion Hillary, in my opinion, is whatever she needs to be to get her way. My biggest concern with Hillary is that in order to win the high office, she'll have to embrace the progressive mantle. If so, her first appointment would likely be one that leans progressive, if only to ensure that she keeps the peace enough to be re-elected to a second term.
- xbmcuser 11y ago
  I will be shocked if Hillary nomination is more liberal than Obama's. Hillary is a conservative in Democrats clothing currently she is spouting liberal agenda to get the nomination once elected whe will go for conservative options under the umbrella of getting things done.
fennecfoxen 11y ago
Conn Carroll, spokesman for Mike Lee (R, Utah, on the Senate Judiciary Committee) concurs, inquiring: "What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia?" and proposes that "If anything this will put a full stop to all Obama judicial nominees going forward." https://twitter.com/conncarroll/status/698626902160838656 https://twitter.com/conncarroll/status/698626902160838656 https://twitter.com/conncarroll/status/698627015159644160 https://twitter.com/conncarroll/status/698627015159644160
Steko 11y ago
The longest confirmation in history was apparently Brandeis at 125 days. Assuming Obama takes about a month to get a nomination together that leaves just over 300+ days left in this administration. That said, would not surprise me to see the Senate serially find reasons to reject say 3-4 candidates or screw precedent and just take forever to run out the clock on purpose. They will likely also have pro forma sessions to deny a recess appointment as well [1]. [1] https://en.wikipedia.org/wiki/NLRB_v._Noel_Canning https://en.wikipedia.org/wiki/NLRB_v._Noel_Canning One option Obama would have that might fill the seat before his term is up is to go back to providing a real list of a number of candidates instead of the "list of one". The chance of this happening is near zero of course; I guess he'll nominate someone a bit closer to the center and let them be stonewalled, something which may help the democrats in the election. I imagine a lot of good candidates, knowing the nomination is destined for limbo, might opt out of the media circus and decline it. Of course if the Dems win the election the incentive to stall fades considerably.
- bradleyjg 11y ago
  Abe Fortas resigned May 15, 1969 and Harry Blackmun wasn't confirmed until May 12, 1970 (362 days) after the failed nominations of Haynsworth and Carswell. Likewise, Lewis Powell died June 26, 1987 but Anthony Kennedy wasn't confirmed until February 3, 1988 (222 days) after the failed nominations of Robert Bork and Douglas Ginsburg. There may be other similar situations but those are the ones that came to mind.
  - josephscott 11y ago
    Perhaps it would have better been described as 'The longest single confirmation process in history'. In terms of the whole replacement process, where it included candidates that were rejected, there have been times over 125 days ( as you mentioned ). Raw data is available at http://www.senate.gov/pagelayout/reference/nominations/Nominations.htm http://www.senate.gov/pagelayout/reference/nominations/Nomin...
- michaelt 11y ago
  Do you think candidates who turn the job down will be expecting another chance later?
ck2 11y ago
Any senator can put an anonymous hold on any nomination. It's never been used for a supreme court judge. This will most likely be the first time and it will be a new low.
tptacek 11y ago
The longest Supreme Court confirmation took ~4.5 months. But that's the process for one candidate. The whole process of replacing a candidate will take longer.
geofft 11y ago
Ted Cruz has already called for the process to get delayed for the next president. (Which seems ridiculous to me, since that's not in line with either Cruz's or Scalia's commitment to constitutionalism and the rule of law, but hey.) https://twitter.com/tedcruz/status/698634625246195712 https://twitter.com/tedcruz/status/698634625246195712 The Senate had been (apparently) filibustering presidential appointments quite a bit more of late, both Democrats against Bush and Republicans against Obama, concluding in the Republican-devised "nuclear option" being used by the Democrats in 2013. Nominations by the president now only require a simple majority, not a supermajority, with the specific exception of Supreme Court nominees. https://en.wikipedia.org/wiki/Filibuster_in_the_United_States_Senate#Recent_filibusters_of_nominations https://en.wikipedia.org/wiki/Filibuster_in_the_United_State... It would not be surprising at all to see the same sort of filibustering that was previously applied to both Obama and Bush's nominations be applied to whomever Obama nominates to the Supreme Court.
- DrScump 11y ago
  <the Republican-devised "nuclear option" being used by the Democrats> How's that again?
  - geofft 11y ago
    https://en.wikipedia.org/wiki/Nuclear_option https://en.wikipedia.org/wiki/Nuclear_option The "nuclear option" was named by Trent Lott (R-Miss.) in 2003 and first seriously threatened by majority leader Bill Frist (R-Tenn.) in 2005. It got actually invoked by the Democrats in 2013, in the reverse situation: the Democrats had a majority but not a supermajority of the Senate, and a Democratic president.
showerst 11y ago
The math here is interesting for the republicans. A candidate has to confirmed by the senate judiciary committee (11/9 republican) then the whole senate (54/46 if the independents go dem as usual). The general consensus, however, is that the democrats have a good chance at winning back the senate. So the question for republicans is, do they accept a moderate candidate now, or stall until the election and risk having a democratic senate (and president, but that race is far too early to have a sense of, unlike the senate), and take the heat for taking 3-4 times as long as usual to confirm a justice, and have any cases under review potentially go 4 to 4 on the court, which means the lower court rulings in those cases stand, or the justices can request that they be re-argued. For the democrats, you've got the current situation vs a chance to get someone more liberal in during 20 days of obama + the next senate (although pushing a nominee through in jan 2017 would have terrible optics), or waiting. Your risk is that the republicans win the senate and the president. My sense is that the democrats will put forth someone fairly moderate, but it's hard to tell if the senate will stall it out or not. It likely depends on the nominee. The Republicans hold all the cards, but the dems are probably in a slightly stronger position, because they only need two republican senators on the judiciary to decide that they'd rather not risk it, and two more in the full senate.
- tptacek 11y ago
  The Republicans have more or less already announced that they will refuse to consent to a replacement this term. That could change if Hillary wins (she will likely take the Senate with her if she does), but, the odds-on outcome is: Obama nominates someone, but no Obama nomination is confirmed. It's not just that it's an election year, but that it's a closely divided Senate with a liberal President replacing the most reliable and influential conservative on the Court.
  - showerst 11y ago
    They're obviously going to say that now (keep in mind so far the people who've said that are Cruz who is on judiciary but will never approve any Dem candidate and McConnell who doesn't matter.) The ones who matter most are probably Flake and Tillis since they're the least conservative among the judiciary members not up for reelection. I think we'll see an initial stall for sure, and then in a few months it will depend on how polls are going, both in the senate and national races. Hillary + dem senate is the nightmare scenario for republicans, so they're likely to make a deal if that's still a strong possibility in July.
dragonwriter 11y ago
Typical is irrelevant, its a political process and the Republican majority in the Senate will be under strong pressure from within their own party's base to block any Obama nomination, both on ideological grounds and for strategic reasons (to preserve the nomination for their Presidential candidate, should they win.) I wouldn't be surprised if there is no action until after the election (if a Democrat is elected), or the inauguration (if a Republican is elected.)
- tptacek 11y ago
  There's some merit to the argument that the voters should decide, too. It's not like this is a year where the outcome of the election is predictable; in fact, if anything, the GOP is on balance disfavored: call it a 50/50 shot at the Presidency, and a less than 50/50 shot at keeping the Senate, due to the 2016 map.

aklemm 11y ago

That struck me as premature and unlikely. There's 11 months left in Obama's term, after all. That seems like enough to get a replacement in there.

scruple 11y ago

Well, considering that the Presidential election is this year... (the Republican) Congress will not confirm any nomination from President Obama before the election is over. So, I imagine that the appointment won't happen until after the election cycle. This makes the Congressional races a bit more interesting. edit/ Some words.

aklemm 11y ago
Won't they be under an awful lot of pressure considering it will be obvious they are obstructing normal business?
- sbarre 11y ago
  Did you forget the /s tag at the end there?
  - aklemm 11y ago
    Hah, good point. But I guess the idea is that this is a major issue that will be in the spotlight. Tons of scrutiny and no way to cover what might be their obvious motives to avoid an appointment. The circumstances are extra-ordinary.
- hwstar 11y ago
  No. Look what happened when Bush was president, and the democrats stalled the election of supreme court justices. The republicans control 53 senate seats, and can refuse to confirm any justice till they know the outcome of the presidential election. If Trump wins, they'll stall until he takes office. If Sanders or Clinton wins, then they will grudgingly confirm who Obama chooses with some limits.
  - LargeWu 11y ago
    To be fair, one of those was Harriet Miers, who was eminently unqualified for the position, and 100% deserved to be blocked.
    - myko 11y ago
      Another key point: the Democrats didn't say going into the nomination that no matter who Bush nominates they will reject. They were prepared to debate and decide on the nomination based on the merits of the nominee, not a blanket statement saying "we will not agree to anything, ever" - which is how the GOP has behaved during the Obama administration.
  - cowsandmilk 11y ago
    uhhhh... might want to check your facts on that one. Both Roberts and Alito went through on timelines similar to judges nominated by Reagan, H.W., and Clinton. The only nomination from Bush that faced extreme opposition was that of Harriet Miers, and that was from conservatives, not the democrats.
    - nwhitmore 11y ago
      Does the name Robert Bork mean anything to you?
      - tptacek 11y ago
        Reagan nominated Bork, not GHWB.
- scruple 11y ago
  I'm merely speculating as to why the Judge who was quoted said what he said. But, yes, of course. 10 months is a long time to stall a nomination. I don't know of any precedent in this situation.
- PKop 11y ago
  I said this above, but I'll repeat: if they do not reject, their Republican base will revolt and not vote in the upcoming election. They will absolutely be expected to reject and oppose until Obama is out of office. There are 2 sides in the political game, remember. And since supreme court nominations are so important, and this changes the balance, voters will demand they reject his nominees.
  - ethbro 11y ago
    I don't know. Given the timetable and the fact that neither the Republican Party or voters can say who will win the presidential election, it seems like there would be room for a qualified, centrist candidate. Especially if Sanders and Trump stay in the race. Better the devil candidate you know, etc etc
  - hackuser 11y ago
    > if they do not reject, their Republican base will revolt and not vote in the upcoming election. The upcoming election is a general election; they need to appeal to more than their base. In the past year the Republicans in Congress have been trying to shed their obstructionist, irresponsible reputation as the party that shuts down government, holds the solvency of the U.S. hostage, etc.
    - 13thLetter 11y ago
      I wish them good luck with that, considering that the reputation of the GOP as uniquely obstructive in comparison with previous Congresses is purely a construction of media propaganda and is therefore not going to be overturned merely by their good behavior. (A Democratic Senate slow-rolled or blocked innumerable Bush judicial nominees, some for several years, and the Democratic Congress shut down the government several times under Reagan. Both sides have the power to do these things, and have exercised them freely in the past, and somehow the world continued to turn.)
      - hackuser 11y ago
        > the reputation of the GOP as uniquely obstructive in comparison with previous Congresses is purely a construction of media propaganda I'm pretty sure that's not the case. For example, I know the recent GOP Senators used dramatically more fillibusters than anyone before. Also, I'm pretty that some basic fiscal issues like raising the debt limit weren't politicized before recently. > somehow the world continued to turn I think this is a dangerous belief. Actions, especially by the U.S. Senate, have serious consequences for millions to billions of people. The world merely continuing to turn is not a standard; there are serious problems in the world that need to be addressed well, or human welfare in the U.S. and elsewhere will suffer greatly.
- SturgeonsLaw 11y ago
  This has been one of the most obstructionist congresses in recent history, far from being under pressure, I would call it business as usual for them.

nbadg 11y ago

Unlikely to be correct re: nomination, though it's difficult to know how the election will effect the confirmation process, and vice versa. Kagan was nominated May 2010 and confirmed August 2010; Sotomayor was nominated May 2009 and confirmed August 2009. I'm inclined to expect a nomination sooner rather than later, potentially of a candidate with very strong Democratic support. If Republicans oppose the nomination, that could be used as political leverage against them during the election. Edit for some further thoughts: I could see this play out several different ways. Dems could potentially stall on the nomination, to maximize the "gamesmanship" rhetoric leverage of any Republican opposition to the nomination. But if the nominee were confirmed by June, the whole thing might be largely forgotten by the election in November. So potentially, we could see a very quick confirmation. This definitely is a massive boon to the Democratic party; they've just been handed a wildcard and have every ability to choose exactly how to play it. I'm no fan of dehumanizing death, but Scalia's death will have enormous ramifications. Keep in mind: 1. Burwell v Hobby Lobby (private corporate responsibility for birth control re: Obamacare) was 5-4 2. Legal pragmatism arguments against criminal justice matters under equal protections grounds have already been very close to succeeding (or actually have). Could mean the end of the death penalty in the US. 3. Scalia opposed Guantanamo inmates' ability to challenge their detention in US Courts in the Boumediene v Bush decision 4. Scalia consistently opposed expansion of national healthcare 5. Citizens United was 5-4 with Scalia supporting the decision (this is what created superPACs), so potentially this could result in a limitation of corporate personhood 6. Potential liberalization and modernization of intellectual property rules, particularly in context of software (see: denial of certiorari of https://en.wikipedia.org/wiki/Oracle_America,_Inc._v._Google,_Inc. https://en.wikipedia.org/wiki/Oracle_America,_Inc._v._Google...) Further edit: SCOTUSblog analysis on the political situation: http://www.scotusblog.com/2016/02/first-reactions-on-the-passing-of-justice-scalia/ http://www.scotusblog.com/2016/02/first-reactions-on-the-pas...

PKop 11y ago
OK, but if they do not oppose, their supporters will not support them in the election. They have a duty and obligation to oppose.
- 11y ago

tunesmith 11y ago

Seems like it usually takes a month or two for presidents to appoint someone new, and this might be affected by the supreme court's schedule, too. The game theory of this is interesting, for instance, what if Obama nominates someone that is seen as more moderate than someone that Hillary or Sanders would nominate?

xbmcuser 11y ago
I will be shocked if Hillary nomination is more liberal than Obama's. Hillary is a conservative in Democrats clothing currently she is spouting liberal agenda to get the nomination once elected whe will go for conservative options under the umbrella of getting things done.
- bmelton 11y ago
  Warning: Rhetoric and opinion Hillary, in my opinion, is whatever she needs to be to get her way. My biggest concern with Hillary is that in order to win the high office, she'll have to embrace the progressive mantle. If so, her first appointment would likely be one that leans progressive, if only to ensure that she keeps the peace enough to be re-elected to a second term.
xbmcuser 11y ago
I will be shocked if Hillary nomination is more liberal than Obama's. Hillary is a conservative in Democrats clothing currently she is spouting liberal agenda to get the nomination once elected whe will go for conservative options under the umbrella of getting things done.

fennecfoxen 11y ago

Conn Carroll, spokesman for Mike Lee (R, Utah, on the Senate Judiciary Committee) concurs, inquiring: "What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia?" and proposes that "If anything this will put a full stop to all Obama judicial nominees going forward." https://twitter.com/conncarroll/status/698626902160838656 https://twitter.com/conncarroll/status/698626902160838656 https://twitter.com/conncarroll/status/698627015159644160 https://twitter.com/conncarroll/status/698627015159644160

Steko 11y ago

The longest confirmation in history was apparently Brandeis at 125 days. Assuming Obama takes about a month to get a nomination together that leaves just over 300+ days left in this administration. That said, would not surprise me to see the Senate serially find reasons to reject say 3-4 candidates or screw precedent and just take forever to run out the clock on purpose. They will likely also have pro forma sessions to deny a recess appointment as well [1]. [1] https://en.wikipedia.org/wiki/NLRB_v._Noel_Canning https://en.wikipedia.org/wiki/NLRB_v._Noel_Canning One option Obama would have that might fill the seat before his term is up is to go back to providing a real list of a number of candidates instead of the "list of one". The chance of this happening is near zero of course; I guess he'll nominate someone a bit closer to the center and let them be stonewalled, something which may help the democrats in the election. I imagine a lot of good candidates, knowing the nomination is destined for limbo, might opt out of the media circus and decline it. Of course if the Dems win the election the incentive to stall fades considerably.

bradleyjg 11y ago
Abe Fortas resigned May 15, 1969 and Harry Blackmun wasn't confirmed until May 12, 1970 (362 days) after the failed nominations of Haynsworth and Carswell. Likewise, Lewis Powell died June 26, 1987 but Anthony Kennedy wasn't confirmed until February 3, 1988 (222 days) after the failed nominations of Robert Bork and Douglas Ginsburg. There may be other similar situations but those are the ones that came to mind.
- josephscott 11y ago
  Perhaps it would have better been described as 'The longest single confirmation process in history'. In terms of the whole replacement process, where it included candidates that were rejected, there have been times over 125 days ( as you mentioned ). Raw data is available at http://www.senate.gov/pagelayout/reference/nominations/Nominations.htm http://www.senate.gov/pagelayout/reference/nominations/Nomin...
michaelt 11y ago
Do you think candidates who turn the job down will be expecting another chance later?

ck2 11y ago

Any senator can put an anonymous hold on any nomination. It's never been used for a supreme court judge. This will most likely be the first time and it will be a new low.

tptacek 11y ago

The longest Supreme Court confirmation took ~4.5 months. But that's the process for one candidate. The whole process of replacing a candidate will take longer.

geofft 11y ago

Ted Cruz has already called for the process to get delayed for the next president. (Which seems ridiculous to me, since that's not in line with either Cruz's or Scalia's commitment to constitutionalism and the rule of law, but hey.) https://twitter.com/tedcruz/status/698634625246195712 https://twitter.com/tedcruz/status/698634625246195712 The Senate had been (apparently) filibustering presidential appointments quite a bit more of late, both Democrats against Bush and Republicans against Obama, concluding in the Republican-devised "nuclear option" being used by the Democrats in 2013. Nominations by the president now only require a simple majority, not a supermajority, with the specific exception of Supreme Court nominees. https://en.wikipedia.org/wiki/Filibuster_in_the_United_States_Senate#Recent_filibusters_of_nominations https://en.wikipedia.org/wiki/Filibuster_in_the_United_State... It would not be surprising at all to see the same sort of filibustering that was previously applied to both Obama and Bush's nominations be applied to whomever Obama nominates to the Supreme Court.

DrScump 11y ago
<the Republican-devised "nuclear option" being used by the Democrats> How's that again?
- geofft 11y ago
  https://en.wikipedia.org/wiki/Nuclear_option https://en.wikipedia.org/wiki/Nuclear_option The "nuclear option" was named by Trent Lott (R-Miss.) in 2003 and first seriously threatened by majority leader Bill Frist (R-Tenn.) in 2005. It got actually invoked by the Democrats in 2013, in the reverse situation: the Democrats had a majority but not a supermajority of the Senate, and a Democratic president.

showerst 11y ago

The math here is interesting for the republicans. A candidate has to confirmed by the senate judiciary committee (11/9 republican) then the whole senate (54/46 if the independents go dem as usual). The general consensus, however, is that the democrats have a good chance at winning back the senate. So the question for republicans is, do they accept a moderate candidate now, or stall until the election and risk having a democratic senate (and president, but that race is far too early to have a sense of, unlike the senate), and take the heat for taking 3-4 times as long as usual to confirm a justice, and have any cases under review potentially go 4 to 4 on the court, which means the lower court rulings in those cases stand, or the justices can request that they be re-argued. For the democrats, you've got the current situation vs a chance to get someone more liberal in during 20 days of obama + the next senate (although pushing a nominee through in jan 2017 would have terrible optics), or waiting. Your risk is that the republicans win the senate and the president. My sense is that the democrats will put forth someone fairly moderate, but it's hard to tell if the senate will stall it out or not. It likely depends on the nominee. The Republicans hold all the cards, but the dems are probably in a slightly stronger position, because they only need two republican senators on the judiciary to decide that they'd rather not risk it, and two more in the full senate.

tptacek 11y ago
The Republicans have more or less already announced that they will refuse to consent to a replacement this term. That could change if Hillary wins (she will likely take the Senate with her if she does), but, the odds-on outcome is: Obama nominates someone, but no Obama nomination is confirmed. It's not just that it's an election year, but that it's a closely divided Senate with a liberal President replacing the most reliable and influential conservative on the Court.
- showerst 11y ago
  They're obviously going to say that now (keep in mind so far the people who've said that are Cruz who is on judiciary but will never approve any Dem candidate and McConnell who doesn't matter.) The ones who matter most are probably Flake and Tillis since they're the least conservative among the judiciary members not up for reelection. I think we'll see an initial stall for sure, and then in a few months it will depend on how polls are going, both in the senate and national races. Hillary + dem senate is the nightmare scenario for republicans, so they're likely to make a deal if that's still a strong possibility in July.

dragonwriter 11y ago

Typical is irrelevant, its a political process and the Republican majority in the Senate will be under strong pressure from within their own party's base to block any Obama nomination, both on ideological grounds and for strategic reasons (to preserve the nomination for their Presidential candidate, should they win.) I wouldn't be surprised if there is no action until after the election (if a Democrat is elected), or the inauguration (if a Republican is elected.)

tptacek 11y ago
There's some merit to the argument that the voters should decide, too. It's not like this is a year where the outcome of the election is predictable; in fact, if anything, the GOP is on balance disfavored: call it a 50/50 shot at the Presidency, and a less than 50/50 shot at keeping the Senate, due to the 2016 map.