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Scalia's replacement

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  • Scalia's replacement

    The rules:

    1. Play nice.
    2. See rule 1.

    The precedent for nomination

    Ref: Supreme Court Nominations, 1789-present

    There's been some suggestion that a nomination during a presidential election year violates an 80-year precedent. In fact, there is no such precedent. Vacancies on the Supreme Court, and hence nominations during election years are rare. I can find no case where a vacancy in an election year did not lead to a nomination.

    There is one precedent, typified by a sole example, however, for withholding a Supreme Court confirmation vote in an election year: the intended replacement of Chief Justice Earl Warren in 1968. No election year resignations, retirements, or deaths have taken place since then, and in fact, a nomination was indeed submitted to the Senate in that case.

    With Johnson choosing not to run again, and expecting a Nixon presidency, Warren announced his retirement in June 1968 to allow Johnson to name his replacement. In a brokered deal, Johnson chose Associate Justice Abe Fortas, who was originally nominated to the court by Lyndon Johnson and confirmed by the Senate in 1965. Simultaneous with Fortas' nomination for elevation, Homer Thornberry was nominated to replace Fortas.

    Already under pressure from partisan opposition due to general conservative displeasure with the Warren court and Johnson's Civil Rights Act, the deal fell apart under mounting accusations of ethics violations by Fortas. Fortas had accepted an out-sized, for the time, payment from private business interests for a series of speeches. In addition, Fortas' close association with Johnson even after his appointment to the court brought into question the constitutional separation of powers should he be named Chief Justice.

    Fortas was deeply compromised, leading to an arguably well-deserved filibuster of his nomination, even if the proximate cause was less deserving. Both nominations were withdrawn by Johnson on October 4, a month before the election. Warren then chose to delay his retirement, removing the vacancy until after the election, and with it, the need for a nomination.

    Vacancy on the Supreme Court

    The next president will take office in 11 months. There is no precedent for a period that long without a nomination, and the resulting vacancy could well be the longest in history.

    The longest previous vacancy was occasioned by the death of one of the original justices, William Cushing, on September 13, 1810, replaced by Joseph Story on Nov 18, 1811 after two previous nominees declined to serve and one was rejected. No nomination was sent to the Senate in the period after former President John Quincy Adams declined to serve on Feb 22 and before Story's nomination on Nov 15, representing the longest period without a nomination as well. Smith Johnson's vacancy, occasioned by his death on December 18, 1843 ran nearly as long, until his replacement by Samuel Nelson on Feb 14, 1845 after a long parade of failed nominations.

    It's noteworthy that Nelson was nominated on Feb 4, one month prior to James Polk's inauguration on Mar 4, 1845.

  • #2
    Originally posted by One Bad Pig View Post
    Toasti,

    [...]

    I don't see President Obama proffering a candidate likely to draw much bipartisan support. That's not how he rolls. If he surprises me, great - but color me skeptical.
    I expect he'll pick an appellate judge who's already been confirmed by the Senate, piglet.

    We have two examples of confirmation votes on his nominees, both of which were in his first term, attracted partisanship, and received bi-partisan support sufficient to overcome a filibuster. Sonia Sotomayor was confirmed by a vote of 68-31, and Elena Kagan by a vote of 63-37. History suggests your skepticism is unwarranted.

    Comment


    • #3
      Of course, I can't finish a Jerk™ post without reveling in the irony that in this case denying a nomination, as currently supported by partisan Republicans, would be in direct contradiction to Scalia's originalist jurisprudence, currently supported by partisan Democrats.

      You can't make this stuff up.

      While it's clear there is no precedent for leaving it vacant, the rhetoric from either side is business as usual for Washington, don't you think. Shumer pretty much said the exact same thing in 2007. Doesn't matter which side of the aisle, it's all reconstructionist history. The circumstances weren't the same, but
      For the sarcastically impaired the following is said in jest

      Shumer speaks with forked tongue...


      Source: American Constitution Society Videos July 27, 2007

      “The Supreme Court is dangerously out of balance, With respect to the Supreme Court at least, I will recommend to my colleagues that we should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances....I will do everything in my power to prevent one more ideological ally from joining (John) Roberts and (Samuel) Alito on the court

      © Copyright Original Source



      source
      "What has the Church gained if it is popular, but there is no conviction, no repentance, no power?" - A.W. Tozer

      "... there are two parties in Washington, the stupid party and the evil party, who occasionally get together and do something both stupid and evil, and this is called bipartisanship." - Everett Dirksen

      Comment


      • #4
        Originally posted by lao tzu View Post
        I expect he'll pick an appellate judge who's already been confirmed by the Senate, piglet.

        We have two examples of confirmation votes on his nominees, both of which were in his first term, attracted partisanship, and received bi-partisan support sufficient to overcome a filibuster. Sonia Sotomayor was confirmed by a vote of 68-31, and Elena Kagan by a vote of 63-37. History suggests your skepticism is unwarranted.
        Some are floating Padmanabhan Srikanth "Sri" Srinivasan from the United States Court of Appeals for the District of Columbia Circuit where he was confirmed 97-0. He worked in the U.S. Solicitor General's office during the Bush administration, clerked for Reagan appointee Sandra Day O'Connor and would be the first Asian-American justice of the Supreme Court. He would be hard to say no to unless something came up.

        I'm always still in trouble again

        "You're by far the worst poster on TWeb" and "TWeb's biggest liar" --starlight (the guy who says Stalin was a right-winger)
        "Overall I would rate the withdrawal from Afghanistan as by far the best thing Biden's done" --Starlight
        "Of course, human life begins at fertilization that’s not the argument." --Tassman

        Comment


        • #5
          The first to state his case seems right until another comes and cross-examines him.

          Comment


          • #6
            Originally posted by rogue06 View Post
            Padmanabhan Srikanth "Sri" Srinivasan [...] would be hard to say no to unless something came up.
            That's the candidate I had in mind in my response to one bad bit of bacon on the hoof. It's the kind of nomination I'd consider very Obama-esque in its academic pedigree, and perhaps even Clintonian in its triangulation. I can imagine only one scenario more chortilicious.

            Imagine Hillary nominating Obama to an inherited vacancy.

            Comment


            • #7
              Originally posted by lao tzu View Post
              That's the candidate I had in mind in my response to one bad bit of bacon on the hoof. It's the kind of nomination I'd consider very Obama-esque in its academic pedigree, and perhaps even Clintonian in its triangulation. I can imagine only one scenario more chortilicious.

              Imagine Hillary nominating Obama to an inherited vacancy.
              I think his biggest obstacle are the Democrats themselves. Not that they would stop his nomination if picked but that they'll work hard to keep him from being nominated. Why? His views are an enigma. He has no record really to speak of and for the last 50 years the Democrats have been very good at putting people on the Supreme Court that they could absolutely count on to march in lock step. Something that the Republicans have a rather poor record of accomplishing (starting back with Warren Burger).

              The Democrats will not want to blow this chance on a crap shoot and frankly Obama has shown an absolute loathing toward triangulation.

              I'm always still in trouble again

              "You're by far the worst poster on TWeb" and "TWeb's biggest liar" --starlight (the guy who says Stalin was a right-winger)
              "Overall I would rate the withdrawal from Afghanistan as by far the best thing Biden's done" --Starlight
              "Of course, human life begins at fertilization that’s not the argument." --Tassman

              Comment


              • #8
                Originally posted by lao tzu View Post
                I expect he'll pick an appellate judge who's already been confirmed by the Senate, piglet.

                We have two examples of confirmation votes on his nominees, both of which were in his first term, attracted partisanship, and received bi-partisan support sufficient to overcome a filibuster. Sonia Sotomayor was confirmed by a vote of 68-31, and Elena Kagan by a vote of 63-37. History suggests your skepticism is unwarranted.
                An appellate judge would most likely be reasonable, though with the recent shift in Senate demographics and recent Senate history, one never knows. After Harry Reid's nuclear option shenanigans, it'll be awfully tempting for the Republicans to one-up him. Doesn't make much sense, but that's politics. And as important as recent court decisions have been to his legacy, President Obama may well be motivated to pick someone who's more likely to continue that trend than not.
                Enter the Church and wash away your sins. For here there is a hospital and not a court of law. Do not be ashamed to enter the Church; be ashamed when you sin, but not when you repent. – St. John Chrysostom

                Veritas vos Liberabit<>< Learn Greek <>< Look here for an Orthodox Church in America<><Ancient Faith Radio
                sigpic
                I recommend you do not try too hard and ...research as little as possible. Such weighty things give me a headache. - Shunyadragon, Baha'i apologist

                Comment


                • #9
                  shove a bunch of names in a hat. blindfold Obama and get him to pull a name out.

                  50/50 chance that one or both sides will be unhappy with the option.
                  "If you can ever make any major religion look absolutely ludicrous, chances are you haven't understood it"
                  -Ravi Zacharias, The New Age: A foreign bird with a local walk

                  Be watchful, stand firm in the faith, act like men, be strong.
                  1 Corinthians 16:13

                  "...he [Doherty] is no historian and he is not even conversant with the historical discussions of the very matters he wants to pontificate on."
                  -Ben Witherington III

                  Comment


                  • #10
                    It would be fairly blatantly unconstitutional for the Senate to completely block all appointments to the Supreme court. The constitution says they job is to review and approve the president's appointments, so in refusing to do their job they would be in flat violation of the constitution and of their oaths.

                    An interesting idea I've heard floated around is that Obama could do a recess appointment if the Senate refuses to do their job. Thus far, the Republicans have rather cheatily blocked recess appointments by insisting that the senate was really "in session" even when it wasn't (and the Republican controlled supreme court backed them up, saying Senate was in session whenever it said it was). However, on Feb 3 2017 (I believe, though that date may be slightly wrong), the Senate gets officially dissolved pending the swearing in of the new senators. So there is a few days there in which Obama could take advantage of that forced-recess to appoint a new justice of his choosing.

                    Unfortunately, Obama absolutely loves to triangulate and compromise, so he'll probably appoint a right-wing justice simply in order to appease the Republicans. Or at best, appoint a justice like Sri whose affiliation is uncertain who will leave everyone guessing as to where they'd lean.

                    Comment


                    • #11
                      Originally posted by Starlight View Post
                      However, on Feb 3 2017 [...]
                      ... Obama will no longer be the president.

                      Comment


                      • #12
                        Originally posted by lao tzu View Post
                        ... Obama will no longer be the president.
                        Of course he will, dictator Obama will never give up his office!

                        Okay, so I probably misremembered the date I heard. The idea I'd heard was that there is a brief period sometime early in the new year, where Obama will still be president but the Senate will have been dissolved, during which time Obama could do a recess appointment.

                        Comment


                        • #13
                          Originally posted by Starlight View Post
                          Of course he will, dictator Obama will never give up his office!
                          That is pretty much what we were told about Bush.

                          I'm always still in trouble again

                          "You're by far the worst poster on TWeb" and "TWeb's biggest liar" --starlight (the guy who says Stalin was a right-winger)
                          "Overall I would rate the withdrawal from Afghanistan as by far the best thing Biden's done" --Starlight
                          "Of course, human life begins at fertilization that’s not the argument." --Tassman

                          Comment


                          • #14
                            Originally posted by Starlight View Post
                            It would be fairly blatantly unconstitutional for the Senate to completely block all appointments to the Supreme court. The constitution says they job is to review and approve the president's appointments, so in refusing to do their job they would be in flat violation of the constitution and of their oaths.
                            A) The president doesn't make "appointments" to the SCOTUS, he offers nominations.
                            2) It is not the constitutional responsibility of the Senate to approve, but to consider.

                            Your ignorance of this process is quite profound.
                            The first to state his case seems right until another comes and cross-examines him.

                            Comment


                            • #15
                              Originally posted by rogue06 View Post
                              That is pretty much what we were told about Bush.
                              Keep in mind that Starlight doesn't see a whole lot of difference between them.
                              Enter the Church and wash away your sins. For here there is a hospital and not a court of law. Do not be ashamed to enter the Church; be ashamed when you sin, but not when you repent. – St. John Chrysostom

                              Veritas vos Liberabit<>< Learn Greek <>< Look here for an Orthodox Church in America<><Ancient Faith Radio
                              sigpic
                              I recommend you do not try too hard and ...research as little as possible. Such weighty things give me a headache. - Shunyadragon, Baha'i apologist

                              Comment

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