The spin has begun and as usual, it’s refined a bit as a controversy breaks. But let’s be blunt:

No. It is not true that there is a modern precedent for Congress to simply refuse to take up a President’s nominee to the Supreme Court because the President is in his last year in office. You have to go back to around the civil war for that.

Yes, President Barack Obama has a constitutional right and duty to submit a nominee.

And, yes, the Senate can refuse to even slate it for a vote — even though there is no modern precedent for it and it violates until-now political norms. But, norms, shmorms: norms have been thrown away faster than VCRs in the 21st century.

Is it really sheer partisanship we’re now seeing in the stunning spectacle of a legal if controversial legend dying and within two hours the Senate Majority Leader signalling that the President should forget about naming a nominee since it ain’t gonna happen and should be left to the next President? Is it really all about ideology? Actually, we’re continuing to see the underside of 21st century politics that is now becoming the visible side. No need to lift up the rock to see the insects crawling underneath it anymore.

It’s all about sheer power politics — and a great deal of spite. And a continuing sign of the death of the importance of consensus in an increasingly polarized, politically tribal nation.

It’s notable in this controversy that as we are now seeing the modus operendi of partisans (and uh, oh here come the false equivalency polce who are usually called when someone dares say that only one side does it) to take an assertion or talking point, or a factoid, and repeat it over and over again as if it’s fact and then it is accepted as fact.

Which it isn’t. The respected Scotusblog published this in one of its first posts about Justice Antonin Scalia’s sudden passing:

In the wake of the death of Justice Antonin Scalia, questions have arisen about whether there is a standard practice of not nominating and confirming Supreme Court Justices during a presidential election year. The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election. In that period, there were several nominations and confirmations of Justices during presidential election years.

The Chicago Tribune’s Rex Huppke got it right in a snarky column. Basically, Republican conservatives are suggesting (once more) that Barack Obama is really a PINO — President in Name Only. He really isn’t the President. It’s a kind of nullification. The bottom line: there is no way the Republican base will tolerate its leaders allowing Obama a chance to offer a replacement and reverse or temper Scalia’s point of view.

If Majority Leader Mitch McConnell was as smart as analysts have claimed, he’d allow a vote and the Republicans would win it anyway. And, yes, that could go on for a while and even run out the clock, but also alienate batch of voters if Obama offers names of people who are a)clearly qualified b)symbolic of groups c)have incredible life stories. Huppke:

Like most patriotic Americans, I spent the weekend celebrating the fact that Barack Obama is no longer president of the United States.

Having served out all seven years of his two terms (2 x 4 = 7), he has left the White House, making it available as an Airbnb rental property until a new president is inaugurated in 2017. (Call ahead for special spring break rates!)

Obama’s second term ended Saturday after the death of Supreme Court Justice Antonin Scalia. Almost immediately after news of the conservative justice’s passing hit the Internet, Republican lawmakers declared Obama a lame duck who could not possibly nominate a replacement.

After all, nothing would dishonor Scalia, who embraced constitutional originalism, more than the president doing what the Constitution originally says he’s supposed to do.

About an hour after Scalia’s death was announced, Senate Majority Leader Mitch McConnell said the vacancy should not be filled until a new president is in office: “The American people should have a voice in the selection of their next Supreme Court Justice.”

Granted, 65,915,795 American people voted for Obama to be president for a second term, but that was way back in 2012. Clearly we need some fresh voices. And can we really trust people who voted for Obama?

The other point raised by “libs” and “people who have taken at least a high-school level civics class” is that filling vacancies on the Supreme Court is part of the president’s job description.

But this is Obama the one who some are now suggesting may have had Scalia killed (go here and here.) Just take the old Vince Foster theories and put in Scalia’s name and then take out Bill Clinton’s name and type in Obama and there could be lots of posts on websites to attract lots of readers, lots of books and speaking fees for those who can’t take a heart attack as a heart attack. More Huppke:

Besides, there is historical precedent that shows you do not nominate and confirm a Supreme Court justice during an election year. Or as the Supreme Court-monitoring SCOTUSblog reported: “The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election. In that period, there were several nominations and confirmations of Justices during presidential election years.”

OK, maybe that’s not the best example, but clearly it would be improper for Obama to nominate a replacement because of his lame-duck status.

The term “lame duck” generally applies to a president serving out his term after his successor has been elected. But in Obama’s case, the Republican-led Congress that doesn’t like him decides when he becomes a lame duck. (I think that rule is probably in that same part of the Constitution that Elizabeth Warren hasn’t found yet.)

The day Scalia died, Obama had 341 days left in office. So a lame-duck president is someone who has at least 341 days left in office.

Had Scalia died 50 days earlier, a lame-duck president would be someone who has 391 days left in office. And if the justice had passed away any time prior to Obama’s first inauguration in 2009, Obama would have become the first president to enter office as a lame duck.


I contacted Princeton University historian Kevin M. Kruse via email and asked him to sum up what we’re currently seeing. He wrote:

“Basically: The history isn’t as cut and dry as Democrats suggest, but it’s certainly on Obama’s side on balance. The general rule, informal at that, is that a president shouldn’t make nominations in last six months of his term — but we’re well outside that window. Republicans have every right to block specific nominees, but we’ve never seen a blanket claim that they just wouldn’t consider anyone for nearly a year before.”

I only paid attention to the part where he said “the president shouldn’t make nominations,” so that pretty much confirms the opinions of GOP lawmakers, GOP presidential candidates and probably Ted Nugent.

The evidence is clear: A real president is supposed to nominate people to fill vacancies on the Supreme Court; Obama can’t do that because Republicans don’t want him to; therefore, Obama is no longer president and the Lincoln Bedroom in the White House is available for only $250/night.

The people (who don’t like Obama) have spoken.

And what they say matters more than the 65,915,795 who voted the president into office.

Go to the link and read it in full. It’s perhaps the best thing written on this controversy.

And read Vox. Here’s some of its article:

A key part of the conservative argument will be that it’s unprecedented for the president to nominate a candidate during an election year. “It’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year,” said Sen. Chuck Grassley (R-IA) on Saturday.

Igor Volsky, a staffer at the liberal Center for American Progress, responded with a tweet listing justices who have been confirmed in election years:

Oliver Ellsworth, 1796
Samuel Chase, 1796
William Johnson, 1804
Philip Barbour, 1836
Roger Taney, 1836
Melville Fuller, 1888
Lucius Lamar, 1888
George Shiras, 1892
Mahlon Pitney, 1912
John Clarke, 1916
Louis Brandeis, 1916
Benjamin Cardozo, 1932
Frank Murphy, 1940
Anthony Kennedy, 1988

Volsky also listed Salmon Chase, Ward Hunt, and William Woods, but their nominations all occurred in December — after the presidential election had already happened — so it’s not fair to count them as election-year choices.

Liberals, of course, will argue that this shows it would be unprecedented for Senate Republicans to refuse to confirm Obama’s choice for the Supreme Court. But notably, 13 out of those 14 nominations occurred prior to World War II. That’s significant because American politics — particularly the politics of the Supreme Court — has changed a lot in recent decades. For most of the 20th century, the major parties were not as ideologically polarized as they are today, and Supreme Court nominations rarely led to protracted political fights. The fact that election-year nominations were common during this period doesn’t seem to say all that much about the situation today.

What about Anthony Kennedy? Here, conservatives will have a strong retort: Not only was Anthony Kennedy nominated in 1987 — not 1988 — but the only reason he was nominated at all was because Democrats had rejected the nomination of Robert Bork a year earlier. All told, President Reagan had more than 18 months to fill the vacancy created by Justice Lewis Powell’s retirement, compared with about 11 months for Obama.

The Senate has rejected a few lame duck appointments — in the 19th century

It’s also worth asking the flip side of this question: Has the Senate ever rejected the Supreme Court nominees of presidents in their last year in office?

The closest this came to happening in the 20th century was in 1968, when the Senate rejected Abe Fortas’s nomination to be the chief justice of the Supreme Court. There was a crucial difference here, however: Fortas was already an associate justice.

However, if Republicans want to find examples of the Senate rejecting Supreme Court nominees in the final year of a presidency, they can find two good examples in the 19th century.

The Washington Post’s James Hohmann looks at “Why blocking Obama’s pick to replace Scalia could cost Republicans their Senate majority” but the bottom line is that GOPers will risk that because they don’t want to lose control of the court, just as Democrats would like to regain control of the court.

But there are real risks on how blatantly blocking a sitting President (who happens to be the first African American President in history who was subjected to people insisting he was a Muslim and born in Kenya) will appear to people who are not members of their political choir or not jet-owning conservative talk show hosts. Some of Hohmann’s The Daily 202 post:

Mitch McConnell has decided to wager the Republican majority in the Senate on blocking Barack Obama’s pick for the Supreme Court.

It’s a bold and understandable gambit designed to prevent a leftward lurch in jurisprudence after Antonin Scalia’s unexpected death this weekend, but it could backfire badly.

Assuming the president picks a Hispanic, African American or Asian American – bonus points if she’s a woman – this could be exactly what Democrats need to re-activate the Obama coalition that fueled his victories in 2008 and 2012. Even if he does not go with a minority candidate, the cases on the docket will galvanize voters who are traditionally less likely to turn out.
…..More broadly, this could also undermine efforts by Senate Republicans to show that they are capable of governing and not just “the party of no.” Make no mistake: The upper chamber will grind to a standstill if the GOP follows through on this threat. Democrats who are inclined to work with them promise to stop doing so if Republicans play hardball.
….Ultimately, though, there is not really anything Democrats can do procedurally to force Judiciary Committee Chairman Chuck Grassley to hold a hearing on Obama’s nominee. The only lever they have is public pressure.

The most potent pressure points are the seven GOP incumbents who are up for reelection this year in states Obama carried in 2012. New Hampshire’s Kelly Ayotte and Wisconsin’s Ron Johnson publicly came out in favor of obstruction yesterday. The others are holding their cards close to the vest for right now: Ohio’s Rob Portman praised Scalia but would not address the core issue. Spokesmen for Pennsylvania’s Pat Toomey declined to comment and Illinois’ Mark Kirk ignored inquiries, per CNN.
………And remember that this won’t be happening in a vacuum: If Obama knows for sure that his pick is not going to get formally considered, he can go with someone who gives his party maximum political leverage to bludgeon these Republican incumbents. Monica Márquez is the first Latina and first openly gay justice on the Supreme Court in Colorado, which will again be a crucial swing state. Attorney General Loretta Lynch is an African American woman. Lucy Koh is the first Asian American district judge in the Northern District of California. He could also go with someone who was previously confirmed unanimously by the Senate to give additional rhetorical heft to his attacks that Republicans are being hypocrites.
…The big question right now: Will there even be a confirmation hearing?

McConnell’s Saturday night statement declaring that the vacancy should be filled by the next president did not rule out the possibility of a confirmation hearing or floor time to consider whoever the president picks.

That might be the more politically astute play, since Republicans could slow walk the vetting, trickle out negative revelations about the nominee to right-wing media outlets and then ultimately vote to reject the nominee.

Washington Post columnist Ruth Marcus:

Last I checked, presidents are elected for four years, not three. Which means President Obama should quickly nominate a replacement for Justice Antonin Scalia. Then the Senate should play its assigned role.

For the Senate to shut down the confirmation process would be bad for the court, bad for the country and, ultimately, bad for Republicans.

It would be bad for the court because it would leave a vacancy for more than a year, stretching across two terms and, in any number of important cases, preventing a majority from having a definitive say. (A 4-4 split affirms the lower court ruling and lacks value as precedent.)

It would be bad for the country for similar reasons. Citizens deserve conclusive answers on issues important enough to reach the high court, and divisive enough to split the justices, whether that involves Obama’s executive actions on immigration, Texas’s restrictive abortion law or the role of public-sector unions. They also deserve a functioning political process. Refusing to go forward would serve to deepen and entrench the existing partisanship and ensuing gridlock.

Finally, a Senate work stoppage would, in fact, be bad for Republicans. In the nation’s capital these days, everything is political, every institution politicized. That may be inevitable and irreparable, yet tables here have a way of turning. One party’s obstructionism ends up hurting it down the road.
…..History offers no refuge for Republicans here. Grassley’s argument that it has been “standard practice” that nominees are not confirmed during an election year conveniently ignores the fact that such vacancies are thankfully rare. There is no standard practice.
The presidential candidates have been even more strident. I’ll single out Ted Cruz, because he’s both a former Supreme Court clerk and a current member of the Senate Judiciary Committee.

“We should not allow a lame-duck president to essentially capture the Supreme Court in the waning months of his presidency,” Cruz told ABC’s George Stephanopoulos on Sunday.

Capture? Read the Constitution, senator. The president “shall nominate.” Not “shall” unless some unwritten nominate-by date has passed. So much for strict constructionism and conservatives who bleat about their fealty to the constitutional text.

The Senate is authorized to advise and consent. It is not entitled to conduct a constitutional sit-down strike.

My bet?

Just as spin is refined and reshaped during a blossoming controversy, so are firm assertions subject to being a lot less firm. I’m betting in the end GOPers will realize that McConnell handed Obama and the Democrats a useful political tool and gifted the media a high concept narrative and will allow a vote – and vote whoever Obama suggests down.

And our ongoing 21st century political spitefest will continue.

graphic via shutterstock.com

JOE GANDELMAN, Editor-In-Chief
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8 months 3 days ago

“For most of the 20th century, the major parties were not as ideologically polarized as they are today, and Supreme Court nominations rarely led to protracted political fights.”

Back in the olden days we had these things we called, “grownups”. I know, hard to believe!

“I’m betting in the end GOPers will realize that McConnell handed Obama and the Democrats a useful political tool and gifted the media a high concept narrative and will allow a vote – and vote whoever Obama suggests down.”

I think your bet is the right one Joe, republicans will wise up after their initial outburst, allow a vote, and vote down. Some damage is done already (insofar as McConnell flashed the true face of modern republicanism) but how much remains to be seen.

Funny thing, we’ve seen appointments in the past where picks didn’t turn out to reflect the hopes of the presidents who nominated them. This could happen again just as easily, which just adds a bit more spice to the mix.

Robert P. Coutinho
8 months 3 days ago

So…I wanna get this straight…bear with me

1) Obama wants to take our guns away but, he didn’t do that in his first term, ‘cuz he was wantin’ a second term. He still hasn’t ‘cuz he didn’t get to nominate another SC justice

2) Obama waited until his fourth year of his second term to knock off a SC justice (but only one) so that he could replace the guy while the Senate was loaded with R’s.

3) He left Thomas on the court (I guess ‘cuz he’s black), he left three other conservatives on the court, but he knocked off Scalia–in Texas–at a ranch owned by a conservative Republican.

So now we have a problem and MUST wait until another person is president to replace the one Obama had knocked off–‘cuz–he wants to take our guns away–and a tied court could prevent him–how?

8 months 3 days ago

And it don’t stop. Paul Ryan has weighed in:

“We are knee deep into a presidential election and I think the precedent for not filling a Supreme Court vacancy in such a time is justified. […]

“The president has tried everything he can to empower the executive branch at the expense of the legislative one,” Ryan continued. “His Supreme Court nominees have all contributed to that, those that he has placed on the bench already. So not only does Congress have the authority to stop a nominee, it has an obligation to defend itself against a president and a radically altered court that would continue to seize its powers.

The first paragraph is just bull puckey being made up as they go along. These guys must have been a nightmare to play board games with as kids. You know the type.

The second is so laden with irony I am still 50/50 it was something from The Onion or Andy Borowitz. I find it hard to fathom how a President nominating a new Justice can possibly be construed as “seizing” power from Congress when it’s explicitly enumerated in the Constitution as one of his job functions. What other Presidential super powers don’t work in their last year? Does he have to fly coach instead of getting to use Airforce One? Do his socialist heat ray eye beams need Senate approval before he uses them now? The Republican Party has raised some issues here I think we need to consider very seriously because they raised them.