Mitch McConnell announced:
The American people should have a voice in the selection of their next Supreme Court Justice,” he said in a statement. “Therefore, this vacancy should not be filled until we have a new President.”
But he’s not offering any alternatives to performing the Senate’s Constitutional duty of giving advice and consent on any nominees; he simply wants it not to have to do part of its job.
Today’s GOP: the party of Kim Davis.
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The Republican Party has gone fully to the to the Party of No. This favors liberals in the short term because of Obama’s appointments to the lower courts. This favors the Democratic Party in the long term because the GOP just looks obstructionist.
What happens if the Democratic Party wins in November?Report
I keep saying, Clinton and Sanders should promise to nominate Obama if the vacancy is not filled.
Or even better, Obama should nominate himself.Report
better than better… Hilary.Report
For sheer No-Fvcks-Left-To-Give trolling…
Bill Ayers.Report
Why don’t they just fire him?Report
Out of a cannon, into the sun?Report
Senator McConnell proposes to abdicate his Constitutional duty to advise and consent. He will claim to be a sentinel of the Constitution in so doing.
What would Antonin Scalia have said about all this? Justice Scalia was a man of strong opinions and sour turns of phrase, but also a generally principled user of his own original-meaning brand of textualsm and a keen proponent of the political process working. I think Scalia would have stated that the chips fall where they fall on their own when a Justice dies. He’d have wanted a replacement for one of his colleagues, or himself, sooner rather than later.
Barack Obama is still the President, last time I checked. Just because we’re picking his successor doesn’t mean the White House is vacant. And democratic pressures are supposed to be well insulated from the nomination process set forth in the Constitution itself, at least within the “original public meaning” of that system. I think Scalia would have said to McConnell, too bad for you that a Republican isn’t president at the moment, now go fulfill your oath of office and evaluate Obama’s nominee on her merits like you’re supposed to.Report
What will John Roberts, who cares about the smooth running of it Court and its reputation as a non-partisan body, do?
Back during the Clinton administration, when the GOP was playing the same game with federal judicial appointments at lower levels, CJ Rehnquist told them to knock it the hell off.Report
Not sure if you’re being sarcastic about Chief Justice Roberts, but I think those words are sincere and accurate. I think he will want the seat filled as soon as possible, and should the process start to drag, he will say so.Report
I agree: those things are important to him, just as they were to Rehnquist.Report
Assuming that no successor is forthcoming, what are CJ Roberts’ options, particularly on cases that are going to be split 4-4? I understand that he can let that be the result and the lower court opinion stands. Can he defer some cases indefinitely?Report
Serious question, what percentage of Republicans do you think care about the abdication of responsibility v. care about hardball against the Ds?Report
In the age of Obama, the percentage that care about abdication is tiny. The hatred and resentment run so deep that stopping an Obama nomination to the Supreme Court is viewed as being in the best interest of the nation.Report
“Senator McConnell proposes to abdicate his Constitutional duty to advise and consent.”
I disagree @burt-likko. The job of the Senate here is to both advise and consent. Should Obama take heed if they, say, advised of a list of 5 possible contenders? If not, should they just consent to anyone that the President puts before them? We seem to have a stalemate that is to be broken by that most constitutional of methods. Election.
I do feel that McConnell is playing his cards to soon. That is his perogative. But this is seperation of powers 101. If the voters don’t like it, they should not have elected Republicans to control the Senate. They can vote them out also, much like they did after the gov’t shutdown… As they also elected a Democratic to the presidency, that to me means the voters, as a whole, want a stalemate, indeed they like the idea of no one party having control of government. I agree with them.
In an fairly evenly divided electorate I don’t find this to be too suprising. I simply wish that we had less rancor about it.Report
If the Senate were to propose five individuals for consideration, then I think the President OUGHT to consider them. If they were at least plausible, anyway. That’s not how the “advise” part of the process has evolved over time, though. As it is, I’m not entirely sure how “advise” differs from “consent” in formal parlimentary actions: it’s really “confirm or reject” and that seems like a good enough articulation of what the Framers had in mind to me.
I don’t think what McConnell is planning is contrary to the text of the Constitution. I do think it’s contrary to the spirit and intent, and a shitty way for Congress to treat the Court. But there’s fish all the President or the surviving Justices can do about it.Report
There’s a huge excluded middle between consenting to anyone that the President nominates and rejecting anyone that the President might nominate, even before he does. It’s where every other Senate in history has been. “No, I don’t care what it is, I know I won’t like it” is for two-year-olds.Report
We seem to have a stalemate that is to be broken by that most constitutional of methods. Election.
I hear what you’re sayin but disagree slightly. Given that either party can filibuster SC confirmations, it’s not exactly elections that will resolve the putatively alleged ostensible stalemate. Other factors than the purely electoral will certainly come into play.Report
Or in Obama’s case he can try and rule by executive action.Report
There have been recess appointments to SCOTUS in the past.
This time around it seems like not such a great idea.Report
That’s great but they shouldn’t whine if their nominee gets filibustered or Borked.Report
When have the Democrats filibustered a Supreme Court nominee in the past? They didn’t do it to Roberts, Thomas, or Alito.Report
Between the Estrada case and Bork, I could care less.Report
Let us quote Mr. Estrada’s letter of support to Sens. Leahy and Sessions for Elena Kagan’s Supreme Court nomination:
Report
Six Republicans voted against Bork (who got a straight, up and down vote) and Reagan was warned ahead of time that the Senate would fight hard if Bork specifically was nominated. It’s not like what followed blindsided anyone (except for possibly Bork). Also, illegally firing Archibald Cox in exchange for a SCOTUS seat is pretty sleazy.Report
But that is kinda the point. The president should nominate people who can pass. And if they, moderates that they are, can’t get over the hurdle of the Senate, the pres. gets on his bully pulpit and haranges. Yells until either they get over the hump, or an election comes and one way or another, someone is out the door.
Or its a stasis election, meaning the pres doesn’t get his way, nor does the senate. And we start the game all over.Report
This right here, I would argue, is the heart of my issue with modern American conservatism: That the point of government is not to govern, but to wage symbolic battle.Report
@tod-kelly, that is not an issue with govenance and conservatism. That is an issue with a divided electorate. As an ex-Democrat, I would say that the left doesn’t govern, but that again is the issue with seriously divided population. When half the country doesn’t want what you are offering you arn’t going to be able to easily goven them. They arn’t buying what you are selling, so to speak.
And the issue goes both ways. You see the right as not being able to govern, right now they see the left as tring to ram laws down there throats. As Obama once said, elections have cosequences.Report
Aaron,
Just going to cite Oregon as a place where divided electorates don’t mean burnt to the ground warfare. It means whoever cares about the issue gets what they want.Report
The point of government is not to govern or not, the point is about power, having it and keeping others from getting it.Report
If the result of our changing attitudes towards partisanship, ideology, and institutions is that we can only confirm a Supreme Court justice when the President’s party has 60 votes in the senate, we’ve got a pretty serious constitutional crisis on our hands.Report
Fortunately, it’s the 21st Century. We can replace tenured Justices with hired-per-case adjuncts, and save a bundle to boot!Report
We can always call a constitutional convention.Report
Do you expect that Democratic Party members won’t show up? What is with Conservatives and their magical thinking on Constitutional Conventions? Why do you think the opposition will stay at home?Report
I think that notme’s point was that the Constitution contains an in-built solution for when it stops working rather than hoping that an even more conservative Constitution would result.Report
A solution, yes, but not a practical or realistic one. This crisis will be resolved by the way actual political actors behave in the next 12 months or so. We get to have another game of chicken between Obama and congressional Republicans to go along with the shutdown and the debt ceiling stand-off. And once again, rabid bomb-throwers like Ted Cruz will insist that the only way Republicans can get anything other than total victory is by betraying their constituents, and their constituents will believe it.Report
Don’t you know by now that all conservative thinking is magical? It’s what you always expect so it’s the only thing you will see.Report
Senator McConnell proposes to abdicate his Constitutional duty to advise and consent.
There’s no duty to consent. It’s up to the president to nominate someone whom the Senate will consent to confirm.
Given that Senators take an oath to uphold the Constitution, and that the chances of Obama nominating someone who will actually rule in accordance with the Constitution (by striking down laws that exceed Congress’s enumerated powers) are essentially zero, confirming the kind of candidate Obama will nominate would be an abdication of their duty to uphold the Constitution. To be fair, they also abdicate their duty to uphold the Constitution with most laws they pass, and when confirming Republican appointees, so this is at best a highly selective adherence to duty.Report
Who was the last justice the Senate approved who ruled in accordance with the Constitution, in your opinion? Is Obama is the first President who is so congenitally incapable of nominating a qualified jurist that we can disqualify all of them in advance, or is this a problem that goes back a while and the Senate has only just now seen the light?Report
To be fair, I think McConnell is correct to think that any plausible Obama nominee will be likely to rule almost uniformly in ways that McConnell would disagree with.Report
So what? That doesn’t obligate him to promise to block any nomination before it’s made. The Senate can vote down Obama’s nominee. I think McConnell is afraid that Obama will nominate someone in that middle ground who represents a first of some kind and who will make the Republicans look bad when they vote that person down. Hence, the GOP announcement of the bogus “rule” that presidents can’t nominate a Supreme Court justice in an election year when there’s plenty of precedent that they can.
It’s pretty shameful that McConnell didn’t even let Scalia’s body get cold before playing politics but, then again, he’s always been an ass.Report
My theory is that McConnell’s stance has little to do with Obama and is actually about stopping Trump. Focusing GOP primary voters on the Supreme Court pushes the discussion back towards social issues instead of economic issues, an area where Trump is weaker than the rest of the GOP field. Note, in particular, that blue-state moderate GOP senators up for reelection (Ayote, Portman) came out strongly in favor of McConnell’s stance, something they wouldn’t do under normal circumstances. In this situation, though, they have the most to lose from a Trump nomination, and plenty of time to walk back once the nomination is settled.Report
I like this explanation.Report
(I’m waiting with bated breath for the inevitable Drudge headline of “Did the GOP establishment murder Scalia to stop Trump?”).Report
Now that you’ve said it, it seems self-evidently true.Report
I’d had this thought as well. Also could hurt Cruz because I think he’s on Judiciary and could be the star of the nomination show.Report
Okay, so, imagine the alternate world where McConnell didn’t say this. Three months from now, the blog lights up with posts about how the Republicans obviously weren’t ever going to confirm someone that Obama nominated, party of “no”, magical thinking, children in office, failure of duty, racism, etcetera.
It’s the same garbage, just held over a bit.Report
Even if McConnell discovered a cure for cancer Those People would still criticize him, so the fact that he tortures puppies isn’t even worth discussing,Report
So…if McConnell took the same underlying action with different PR, he would get the same criticism at a different time? I’m shocked.Report
I love how the arguments against filling the position so easily slide into arguments either for making it an elected position or abolishing the Supreme Court altogether. It’s what happens when you need an excuse that sounds better than “I want a justice that I agree with”.Report