President Obama and the Supreme Court /2

Written by  //  October 31, 2016  //  Justice & Law, U.S.  //  1 Comment

Today, I will announce the person whom I believe is eminently qualified to sit on the Supreme Court.
As president, it is both my constitutional duty to nominate a Justice and one of the most important decisions that I — or any president — will make.
I’ve devoted a considerable amount of time and deliberation to this decision. I’ve consulted with legal experts and people across the political spectrum, both inside and outside government. And we’ve reached out to every member of the Senate, who each have a responsibility to do their job and take this nomination just as seriously.

Useful reference – succinct profiles of each Justice and a description of the role each plays on the Court
Meet the Supremes: Who are the US Supreme Court justices?
(BBC) Oyez, Oyez. The US Supreme Court has announced the major decisions of its 2014 term – including legalising gay marriage and upholding President Obama’s healthcare law. The court can have broad and deep impact, but who are the nine justices who have such an outsized influence on American life? Meet the Supremes. (March 2016)

Will Republicans Fight to Shrink the Supreme Court?
(The New Yorker) Conservatives have also begun making the case that the Court is just fine with fewer than nine justices. Senator Ted Cruz, of Texas, sees a “long historical precedent” for a slimmer Supreme Court. Ilya Shapiro, a senior fellow at the Cato Institute, published an article on Wednesday contending that “the Senate is fully within its powers to let the Supreme Court literally die out.” The Constitution, he wrote, “is completely silent on this.” This is true—and misleading. Over the years, the Court has had as few as five members and as many as ten. But the size of the bench has always been determined by a formal act of Congress, not by the whims of the Senate majority (much less its minority). The number nine was set in the Judiciary Act of 1869. It is not, therefore, a constitutional requirement. Neither is it a mere suggestion. Regardless, among Republicans, the idea that eight Justices (or perhaps seven or six) is enough has gained an instant currency. “We could go another term—at least—with eight justices,” a prominent D.C. attorney who served as a senior official in the first Bush Administration told me last week. “The republic will survive.”
As the new term begins, the Supreme Court has been shuffling along, hearing cases and deciding most of them. No less an authority than Justice Stephen Breyer has pointed out that only a handful of cases each term, maybe four or five out of seventy or so, are affected by the lack of a ninth vote.
13 October
Let’s Legislate From the Supreme Court Bench
(NYT) The image of the judge as a legislating boogeyman is familiar to anyone with the patience to have watched Republican senators perform their roles, back when there used to be Supreme Court confirmation hearings. In one of far too many examples, Senator Orrin Hatch, a Utah Republican, praised President George W. Bush for selecting John G. Roberts Jr., “the kind of judge that all of us want — someone committed to applying the law impartially rather than legislating from the bench.” …
What Governor Pence and the Republican campaign officials who drafted his defense of his running mate [“Donald Trump Is Ready to Lead”] obviously don’t realize is that legislating from the bench is now obsolete as an epithet. It’s so 1980s.
The Trump crowd … don’t realize that what was once despised on the political right is now celebrated. The judge as boogeyman has become the judge as savior — at least when intervening to block executive branch action or to strike down a regulatory requirement in the name of free speech.
… the judiciary — the Third Branch — of course is itself an integral part of the government, albeit the unelected part. So judiciary-versus-government may not be the most useful framework for examining the boundaries of the judicial role. And not all judicial interventions are created equal – that’s where the debate really lies.
30 September
Dave Leonhardt: A Liberal Supreme Court
(NYT) Any American under the age of 50 has no memory of living with a liberal Supreme Court. That could change soon. Were a Democratic appointee to fill the current opening, laws could change on voting rights, corporate power, campaign finance, criminal justice and many other issues.
“For the first time in decades,” Jeffrey Toobin writes in the current New Yorker, “there is now a realistic chance that the Supreme Court will become an engine of progressive change rather than an obstacle to it.”
Toobin’s article got me thinking about how quickly the Supreme Court is likely to dominate the political scene if Hillary Clinton wins.
The immediate issue will be whether Senate Republicans fold – or maintain their unprecedented refusal to consider any nominee from President Obama in his last year in office. They have vowed not to fold, but they have an incentive to do so.
Obama nominated a compromise candidate, in Merrick Garland, a highly regarded moderate who will soon turn 64, considerably older than other recent nominees. Garland’s nomination expires at year’s end. If the vacancy falls to Clinton to fill, she will face a decision.
She could re-nominate him in the hope that this time he really would be easily confirmed. Or she could be more ambitious and choose a younger nominee, such as Sri Srinivasan, a 49-year-old federal judge whom Republicans have supported in the past.
All things equal, Srinivasan would be likely to serve almost twice as long as Garland.
Clinton will be in a stronger position if the Democrats retake the Senate – strong enough that choosing Garland again would strike me as a mistake. I’ll delve into the details of a Senate vote in a future newsletter. For now, suffice it to say that anyone who cares about politics and policy should be watching the Senate races as well as the presidential campaign.
Jeffrey Toobin: The Supreme Court After Scalia
(The New Yorker)
He was best known for championing originalism—the theory that calls for interpreting the Constitution as its words were understood to mean at the time of its ratification. He was never able to bring a majority of his fellow-Justices around to this approach, but he was still on the winning side in all the great conservative victories of his era, including Bush v. Gore, which gave the Presidency to George W. Bush; Citizens United v. Federal Election Commission, which hastened a deregulation of American political-campaign funding; and District of Columbia v. Heller, for which Scalia wrote the majority opinion, recognizing for the first time an individual’s right, under the Second Amendment, to own firearms.
Since Scalia’s death, one rule of Supreme Court practice has dominated the deliberations of the eight remaining Justices. When the Court splits four to four, the lower-court decision is affirmed, but the Justices don’t write an opinion and the ruling does not represent a national precedent. This meant that if the four Democratic appointees voted in lockstep—as they already tended to do in controversial cases—they would not necessarily win every case, but they couldn’t lose, either. The liberals could always prevent the establishment of a new Court precedent not to their liking.
30 August
It is reported that Chuck Grassley Says He Could Be Persuaded To Hold Lame Duck Hearing For Merrick Garland
He said he could be convinced if a majority of senators supported it. Apparently afraid that Hillary might nominate a more Liberal judge than Merrick Garland.
12 August
Nick’s Gleanings
US Supreme Court, a grossly overlooked key election issue? – Following is the composition of the geriatric US Supreme Court (which since the death last March of Justice Scalia, a Reagan appointee, has had one vacancy):

                                                                 Age                         Appointed by

Chief Justice John Roberts                  61                                  Bush 43

Justice Anthony Kennedy                     80                                 Reagan

Justice Ruth Bader Ginsburg6             80                                 Clinton

Justice Stephen Breyer                          78                                 Clinton

Justice Clarence Thomas                      68                                  Bush 41

Justice Samuel Alito                              66                                  Bush 43

Sonia Sotomayor                                    62                                  Obama

Elena Kagan                                            56                                  Obama

6               Who in 2009 was treated for early stage pancreatic-. & colon-, cancer, and is rumoured to be contemplating retirement..

So while the last four US Presidents only were able to pick two justices, the next one, during his/her first four-year term may be able to name as many as four (a number equaled only twice &, exceeded only once since WW II, by Truman & Nixon, and by Eisenhower respectively, and most importantly, may have an opportunity to replace the two not of his/her political bent with politically more congenial ones & hence will have an opportunity to drastically alter the Court’s ‘political philosophical moral moorings’, for two decades, or more.
Clinton would stick with Obama’s nominee for Supreme Court: Reid
(Reuters) – Senate Democratic leader Harry Reid said on Thursday he believed Hillary Clinton would stick with President Barack Obama’s Supreme Court nominee if she won the Nov. 8 presidential election.
Some Republican conservatives were concerned that if Democratic presidential candidate Clinton won the White House, she would pick a more liberal judge than Obama’s nominee, Merrick Garland, for a lifetime appointment to the high court. Garland is a centrist federal appeals court judge whom a number of Republicans have praised.
“I would think that she and all the people around her would say, ‘Why do we need to rock the boat here? Let’s get him confirmed quickly and move on to the next one, whenever that comes,'” Reid said on a conference call with reporters.
Clinton has urged the Senate to confirm Garland. Her campaign did not immediately return a request for comment on Reid’s remarks.
19 July
Obama’s Supreme Court Nominee Makes History For Waiting The Longest For Confirmation
Merrick Garland is about to break a record set by Louis Brandeis 100 years ago.
(HuffPost) The milestone couldn’t be more symbolic. Garland, who was nominated in March, is poised to surpass Louis Brandeis, one of the greatest justices to ever live, who exactly 100 years ago endured the largest gap between nomination and confirmation of any Supreme Court nominee: 125 days
27 June
Supreme Court Strikes Down Texas Abortion Restrictions
(NYT) The Supreme Court on Monday struck down parts of a restrictive Texas law that could have reduced the number of abortion clinics in the state to about 10 from what was once a high of roughly 40.
The 5-to-3 decision was the court’s most sweeping statement on abortion rights since Planned Parenthood v. Casey in 1992. It applied a skeptical and exacting version of that decision’s “undue burden” standard to find that the restrictions in Texas went too far.
The decision on Monday means that similar restrictions in other states are most likely also unconstitutional, and it imperils many other kinds of restrictions on abortion.
Justice Stephen G. Breyer wrote the majority opinion, joined by Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. dissented.
When the Eight-Member Supreme Court Avoids Deadlocks, It Leans Left
(NYT) Decisions in the 2015-16 term were deeply affected by the death of Justice Antonin Scalia and the refusal of Senate Republicans to approve President Obama’s nomination of Judge Merrick B. Garland to fill the empty seat.
14 June
Study Calls Snub of Obama’s Supreme Court Pick Unprecedented
(NYT) In every one of the 103 earlier Supreme Court vacancies, the professors wrote, the president was able to both nominate and appoint a replacement with the Senate’s advice and consent. This did not always happen on the first try, they wrote, but it always happened.“There really is something unique about the position Republican senators are taking with respect to the Scalia vacancy,” said Professor Mazzone, who teaches at the University of Illinois.
“You really cannot find any single comparable case,” he said. “We really did not find any precedent for the idea, notwithstanding the Senate’s very broad powers in this area, that a sitting president could be denied outright the authority to offer up a nominee who would receive evaluation through normal Senate processes.”
17 May
The Crippled Supreme Court
(NYT editorial) Every day that passes without a ninth justice undermines the Supreme Court’s ability to function, and leaves millions of Americans waiting for justice or clarity as major legal questions are unresolved.
On Monday, the eight-member court avoided issuing a ruling on one of this term’s biggest cases, Zubik v. Burwell, which challenges the Affordable Care Act’s requirement that employers’ health care plans cover the cost of birth control for their employees. In an unsigned opinion, the court sent the lawsuits back to the lower federal courts, with instructions to try to craft a compromise that would be acceptable to everyone.
This is the second time since Justice Antonin Scalia’s death in February that the court has failed to reach a decision in a high-profile case; in March, the court split 4 to 4 in a labor case involving the longstanding right of public-sector unions, which represent millions of American workers, to charge collective bargaining fees to nonmembers.

US Supreme Court vacant27 March
Why Garland’s Judicial Record Slips Through Critics’ Fingers
(NPR) … the D.C. Circuit, as it is known, deals with the regulatory state — the whole alphabet soup of federal agencies.
For that reason, the court rarely deals with hot-button social issues like abortion, gay rights, the death penalty, religion or affirmative action — issues that arise far more frequently in the other federal appeals courts.
Still, conservative activists see Garland’s record as tilting distinctly to the left. …
“Anyone appointed by a Democratic president is going to be much more liberal than the archconservative Justice Scalia. But among potential Democratic appointees, he’s as good as conservatives could ever reasonably hope for. He is really down the middle.”
Indeed, Garland rarely dissents. He is seen by judges of all ideological stripes on his court as a genuine consensus builder. In his 19 years, he has authored just 16 dissents.
20 March
Why President Obama Picked The ‘Only White Guy’ On His Shortlist
(NPR) “It is my belief that now more than ever his voice would serve the court well, would help to burnish the sense that the Supreme Court is above politics and not just an extension of politics,” said Obama, adding that Garland has the kind of calm voice that would end up “increasing the American people’s confidence in our justice system.”
A few minutes later, the president was even more pointed about wanting a judge who could get confirmed.
“My goal was to actually confirm a justice who I thought could do an outstanding job,” he said. “And Merrick Garland fits that bill.”
Even George Will Thinks The GOP’s Wall of Opposition To Merrick Garland Is Nuts
“Do Republicans really think Donald Trump will make a good Supreme Court choice?” It’s a pretty good question. It’s also the title of a column by one of the Republican Party’s most venerated thinkers, Washington Post columnist George Will.
19 March
Obama’s nomination of Merrick Garland is a lot more ruthless than it looks
The president’s nomination of an alleged moderate has some liberals scratching their heads. They shouldn’t
(Salon) [I]f Senate Republicans still refuse to even hold hearings for Garland, much less give him an up-or-down vote, then the steeliness that undergirds Obama’s plan will start to become more obvious. According to the New York Times, for example, the White House has reassembled much of the team that helped Obama win in 2008 and 2012. And they’re planning one last national campaign to punish GOP intransigence.
16 March
The Merrick Garland Nomination: A New Bork Battle?
(NYT) Now there’s a new battle over the mainstream, what we might call the confirmation-process mainstream. It began within hours of Justice Scalia’s death last month, with Senator Mitch McConnell’s declaration that there would be no hearing for any Obama nominee — a pledge that the Republican leader soon expanded to include no courtesy visits either: 54 closed doors. The administration pushed back: When it comes to Supreme Court nominations, that’s not how it’s ever been done. Meet with the nominee. Give the nominee a hearing. Give the nominee a vote.
The president might even say: Remember Robert Bork? Treat my nominee in the same way. Have a conversation and let the public in on it. Of course the president and his allies know that’s exactly the public conversation that the Republicans fear, because it was clear from the first moment that any Obama nominee would inhabit the constitutional mainstream much more securely than either Judge Bork or Justice Scalia — whose “originalist” philosophy never gained more than a toehold at the court — ever did. Now with the nomination of Merrick Garland, there is not the shadow of a doubt. The only way the Republicans can come out ahead in a public conversation about this particular nominee is by not having it.
Merrick GarlandMerrick Garland, President Obama’s Sensible Supreme Court Choice
(The New Yorker) To understand why Garland is a wise choice for the nomination, read the judicial opinion he published last July upholding a federal ban on federal contractors making federal campaign contributions. …
If there is any substantive discussion of the nomination, it will be said, often, about Garland that, as a sitting federal appellate judge, he fits the limited career pattern of all but one current Justice (Elena Kagan was Solicitor General when she was nominated) and that, as a graduate of Harvard Law School, like four of the current Justices, he would compound the narrow élitism of the Supreme Court if confirmed.
One tweet that shows why some liberals are worried about Merrick Garland
(Vox) President Barack Obama nominated US Circuit Judge Merrick Garland to the Supreme Court Wednesday for a simple reason: Garland has a moderate reputation and strong bipartisan appeal. (Reuters) Obama picks centrist high court nominee; Republicans unmoved
3 March
Joe Biden: The Senate’s Duty on a Supreme Court Nominee
(NYT) IN my 36-year tenure in the United States Senate — nearly half of it as chairman or ranking Democrat on the Judiciary Committee — I presided or helped preside over nine nominees to the Supreme Court, from both Republican and Democratic presidents. That’s more than anyone else alive today.
In every instance we adhered to the process explicitly laid out in the Constitution: The president has the constitutional duty to nominate; the Senate has the constitutional obligation to provide advice and consent. It is written plainly in the Constitution that both presidents and senators swear an oath to uphold and defend.
That’s why I was so surprised and saddened to see Republican leaders tell President Obama and me that they would not even consider a Supreme Court nominee this year. No meetings. No hearings. No votes. Nothing. It is an unprecedented act of obstruction. And it risks a stain on the legacy of all those complicit in carrying out this plan. I would ask my friends and colleagues — and all those who love the Senate — to think long and hard before going down this road.
2 March
In oral arguments for the Texas abortion case, the three female justices upend the Supreme Court’s balance of power.
(Slate) … there are three women on the court. And if you count Justice Stephen Breyer as one of history’s great feminists—and I do—then you can view the arguments in this term’s landmark abortion case, Whole Woman’s Health v Hellerstedt, as creating a neat 4–4 split. On one side, you have a group of testy male justices needling a female lawyer for Texas clinics about whether it was even appropriate for them to hear this appeal. On the other, you’ve got four absolutely smoking hot feminists pounding on Texas’ solicitor general for passing abortion regulations that have no plausible health purpose and also seem pretty stupid. …
The case involves a crucial constitutional challenge to two provisions in Texas’ HB 2, the state’s omnibus abortion bill from 2013. The first requires doctors to obtain admitting privileges from a hospital 30 miles from the clinic where they perform abortions; the second requires abortion clinics to be elaborately retrofitted to comply with building regulations that would make them “ambulatory surgical centers.” If these provisions go into full effect, Texas would see a 75 percent reduction in the number of clinics serving 5.4 million women of childbearing age. The constitutional question is whether having 10 clinics to serve all these women, including many who would live 200 miles away from the nearest facility, represents an “undue burden” on the right to abortion deemed impermissible after the Casey decision. Each of the female justices takes a whacking stick to the very notion that abortion—one of the safest procedures on record—requires rural women to haul ass across land masses larger than the whole state of California in order to take a pill, in the presence of a doctor, in a surgical theater.
27 February
David T. Jones: The Battle for the Soul of the Supreme Court.
Disingenuousness Drenched in Hypocrisy
(The Metropolitain) To salvage their political future, the Republicans must win the 2016 presidential election. Given the ages of the Supremes, three plus Scalia, are likely to be replaced during the tenure of the next president, whether it be four or eight years. If the Republicans win, the president will nominate a reliably conservative jurist. If the Democrats, win (but the Republicans hold the Senate) the president will nominate a strong liberal jurist with whom the Republicans may attempt to defeat.
And it would be no surprise for the Senate to defeat a presidential nominee. Democrats have been particularly adroit at defeating Republican presidential nominees three since 1969 (or forcing their withdrawal through adverse publicity, e.g., Douglas Ginsburg in 1987 for the revelation that he had smoked marijuana—today he might be rejected for having not/not so indulged).
Nevertheless, for today the contretemps will be used to galvanize the “base” for both parties. The Republicans through pure “must win” desperation arguing that their political vision of the United States is at risk. The Democrats may nominate a benchmark jurist, e.g., among the “mentioned” are a South Asian nationality justice and an openly gay justice. Recalcitrance by the Republicans could be effectively used to paint the Republicans as racist/sexist Neanderthals.
22 February
Supreme Court Justice Clarence Thomas hasn’t asked a question in a decade
(msnbc) Ten years ago Monday, Supreme Court Justice Clarence Thomas asked a question from the bench.
He hasn’t done it since.
The streak is a record — no other justice in modern history has gone more than a term without asking a question during oral arguments. It’s also a source of curiosity and angst in the legal community.
It will also likely continue for some time. Thomas has shown no sign of changing his ways, issuing his opinions in written form and making little more than small talk with other justices when the court is hearing arguments — and, once, three years ago, cracking an apparent joke.
The last time Thomas asked a question was Feb. 22, 2006, during arguments on a death penalty case.
No one knows quite why Thomas chooses to abstain as he does. Some have pointed to his prior remarks about growing up self-conscious about his rural Georgia accent. But the more likely explanation is that Thomas believes he learns more if he keeps quiet.
19 February
flags at half-mast at SCOTUSShould Obama Pick Nominee? Your Answer May Depend on How Much History You Know
(NYT) The Senate is preparing for a no-holds-barred battle over whether it should even consider President Obama’s choice to replace Antonin Scalia on the Supreme Court. Not surprisingly, Americans are divided by political party about whether Mr. Obama should be the one to nominate the replacement, a new online poll shows. But there is also a fascinating wrinkle.
The more people are told about the history of Supreme Court nominations, the more they tend to agree that the Senate should consider the president’s nomination, not delay it. Supreme Court Nominees Considered in Election Years Are Usually Confirmed
O’Connor undermines GOP talking points on Court vacancy
O’Connor specifically said during the interview, “I think we need somebody there to do the job now and let’s get on with it.” She added, in reference to President Obama, “It’s an important position and one that we care about as a nation and as a people. And I wish the president well as he makes choices and goes down that line. It’s hard.”
16 February
White House: Obama Has Started Work To Pick Supreme Court Justice
(Reuters) – The White House on Monday said President Barack Obama had started preliminary discussions with his team about naming a Supreme Court justice nominee and accused Republicans of “bluster” for saying they would not confirm his pick.
White House spokesman Eric Schultz told reporters that Obama would seek a nominee who understands that justice is not an abstract theory but something that affects Americans’ daily lives.
15 November
Nate Cohn: Republicans Risk Five Key Senate Races With Supreme Court Stance
(NYT The Upshot) The Senate is in play this November, and the same vulnerable Republicans whose defeats might cost the G.O.P. control of the chamber are at once among the likeliest to back President Obama’s nominee. They are also the likeliest to suffer if the fight has political costs to the party.
The Democrats aren’t favored to retake the Senate. They would need to gain five seats (or four if they retain the presidency). But they have a real opportunity to win because a large number of Republicans from competitive or Democratic-leaning states are up for re-election. These Republican senators could have strong electoral incentives to support Mr. Obama’s Supreme Court nominee — otherwise, their opposition will be used against them.
Robert Reich writes on Facebook that “Obama will nominate 46-year-old Judge Sri Srinivasan, an Indian-American jurist who Obama nominated in 2013 to the U.S. Court of Appeals for the D.C. Circuit — and the Senate confirmed unanimously. Having confirmed him unanimously just three years ago, it would be difficult (but hardly impossible) for Republicans to oppose him now. (Twelve former Solicitors General, including Republican notables as Paul Clement and Kenneth Starr had endorsed his confirmation. Moreover, the D.C. Circuit has long been a Supreme Court farm team – Scalia himself, along with John Roberts, Clarence Thomas, and Ruth Bader Ginsburg were judges there before ascending to the Supreme Court.) … My suspicion is Obama couldn’t do better than Srinivasan. No other nominee with get a majority of Senate votes”
Justice Ruth Bader Ginsburg’s Touching Statement on Scalia
(Slate) The friendship between Justices Ruth Bader Ginsburg and Antonin Scalia was the stuff of Washington lore. The way the two justices, who were often polar opposites on the bench, managed to form an unlikely friendship had often been written about, and it even inspired an opera. “Call us the odd couple,” Scalia said last year at a George Washington University event alongside Ginsburg. “She likes opera, and she’s a very nice person. What’s not to like?” he asked. “Except her views on the law.”
What the Death of Justice Antonin Scalia Means for Religious Liberty
(The Atlantic) The staunchly Catholic U.S. Supreme Court justice was known for his acidly conservative opinions, but ultimately, he prioritized the Constitution over the Church.
13 February
Antonin_Scalia_Official_SCOTUS_PortraitAntonin Scalia, Justice on the Supreme Court, Dies at 79
(NYT) Justice Antonin Scalia, whose transformative legal theories, vivid writing and outsize personality made him a leader of a conservative intellectual renaissance in his three decades on the Supreme Court, was found dead on Saturday at a resort in West Texas. He was 79.
He was, Judge Richard A. Posner wrote in The New Republic in 2011, “the most influential justice of the last quarter century.” Justice Scalia was a champion of originalism, the theory of constitutional interpretation that seeks to apply the understanding of those who drafted and ratified the Constitution. In Justice Scalia’s hands, originalism generally led to outcomes that pleased political conservatives, but not always. His approach was helpful to criminal defendants in cases involving sentencing and the cross-examination of witnesses. …
In 1986, after Chief Justice Warren Burger announced his intention to retire, Mr. Reagan nominated Judge Scalia to the Supreme Court. Though his conservative views were well known, he was confirmed by the Senate by a 98-0 vote.
The lopsided vote for Justice Scalia also reflected a different era, one in which presidents were thought to have wide latitude in naming judges. That era seemed to come to an end in 1987, with the defeat of the nomination of Justice Scalia’s former colleague on the D.C. Circuit, Judge Bork.
In 1993, at the confirmation hearing for Justice Ginsburg, Senator Joseph R. Biden Jr., who was then chairman of the Senate Judiciary Committee, said “the vote that I most regret of all 15,000 votes I have cast as a senator” was “to confirm Judge Scalia” — “because he was so effective.”
Three days before the court handed the presidency to Mr. Bush in December 2000, in Bush v. Gore, the court shut down the recount of votes in Florida in an unsigned opinion over the dissents of the four more liberal justices. Justice Scalia felt compelled to respond in a concurrence.
“The counting of votes that are of questionable legality does in my view threaten irreparable harm to” Mr. Bush “and to the country, by casting a cloud upon what he claims to be the legitimacy of his election,” Justice Scalia wrote. He would later say privately that his brief concurrence doomed his chances of being named chief justice.
Schumer has to threaten the full nuclear option to move McConnell on Supreme Court nomination
(Daily Kos) In the wake of Supreme Court Justice Antonin Scalia’s death, Republicans abandoned any pretense at decorum and immediately began issuing pronouncements as to how and when Scalia’s seat should be filled—namely, not by Barack Obama. If that’s the way they want to play it, then fine: Here’s how Democrats should respond.
There’s no law or Senate rule that can compel Mitch McConnell, the GOP majority leader, to allow a vote to proceed on anyone Obama might nominate. McConnell could choose to wait as long as he likes—indeed, he can wait until Republicans control both the White House and the Senate at the same time. And if that situation doesn’t obtain in 2017, he could delay confirmation hearings until 2021, or 2025—whenever the red stars finally align. …
McConnell has to fear the possibility of losing his majority leader’s gavel—the Senate playing field doesn’t favor the GOP this year. And if he also fears Schumer will get rid of the filibuster even for Supreme Court nominations, then he’ll be motivated allow Obama to name a replacement for Scalia now. This way, McConnell would have more leverage. If waits, he risks winding up in the minority and having Schumer run roughshod over him. McConnell’s smart enough to know what the better choice is, and that’s acting now.
GOP demands threaten US Supreme Court’s integrity
The voice that really needs to be heard is that of Chief Justice John Roberts, who as a constitutional officer is responsible for leading the judiciary. The GOP’s demand, if met, would constitute court-packing in reverse. For the court’s own sake, it cannot be allowed.
(Boston Globe) … the Constitution says the president will nominate justices to fill openings on the court – not that he will do so only in odd-numbered years, or only at the beginning of his term, or only when Ted Cruz thinks he should.
So it’s an odd way to pay homage to Scalia that Cruz, Marco Rubio, and Senate Majority Leader Mitch McConnell called on President Obama not to nominate a replacement for Scalia. Instead, they are urging him to leave that task to his successor, which they hope will be a Republican. There is no legitimate reason for Obama to wait or for the Senate to refuse to consider his nominee. And one doesn’t need to share Scalia’s originalism to object to such an unusual demand, which threatens to weaken the court’s independence in the American political system.
If They Obstruct Scalia’s Replacement, Republicans Risk An Avalanche of Obama Voters
If Republicans want to obstruct an Obama nominee and make the Scalia replacement an election issue, they will potentially be inviting a wave of Obama voters to turn out in massive numbers.
Just 18 days ago, former Secretary of State Hillary Clinton was asked about nominating President Barack Obama to the Supreme Court and she said, “That’s a great idea!”
It’s an even greater idea if it is something that would happen immediately after the election, effectively motivating the same turnout as surprised the beltway for Obama in 2012.

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