U.S. Supreme Court: Post-Nino Edition

she should decline to respond, period

*burns Notorious RBG jersey*

now the possible are outcomes are 1) GOP folds before the election and we get a relatively older justice that even fox admits that Garland is the most conservative nominee from a democratic president in the modern era, or 2) GOP folds after Clinton wins and appoints Garland in the lame duck session, which effectively grants them an extra decision point that they normally wouldn't have, or 3) GOP wins the election and blood flows from our tear ducts. Those are all weak outcomes imo.

― Karl Malone, Thursday, March 17, 2016 10:12 AM (seven months ago)

now that options 1 and 3 are pretty much off the table, looks like option 2 is becoming more likely:

Sen. Jeff Flake (R-AZ) has long been signaling that Senate Republicans should confirm Merrick Garland, President Obama's nominee to the Supreme Court, in the lame duck session if Hillary Clinton wins the election, and on Thursday he confirmed his position.

"I said if we were in a position like we were in in '96 and we pretty much knew the outcome that we ought to move forward. But I think we passed that awhile ago," Flake told Politico. "If Hillary Clinton is president-elect then we should move forward with hearings in the lame duck. That's what I'm encouraging my colleagues to do."

http://talkingpointsmemo.com/livewire/flake-confirm-garland-if-clinton-wins

although there is an option 4 - dems take the senate and HRC nominates a more liberal, younger candidate - which i didn't consider at the time

what does "extra decision point" mean?

heh, i was confused by that too, looking back. the context was that obama had just nominated garland, even after there were clear indications from the GOP that they weren't going to consider ANY nominee. i think at the time i was arguing that obama should have nominated a more liberal nominee in the first place: forcing them to decide between a relatively liberal, non-Garland candidate in March, or possibly a different, even more liberal candidate in Jan 2017, after HRC was inaugurated, if the democrats took over the senate. the "extra decision point" i was referring to was during the lame duck session, giving the republicans the option to wait until then to confirm Garland. Nominating Garland effectively gave the GOP the option to do nothing, wait around, and then go with Garland if that was the best option available. and that's what has happened: if there are enough republicans like Flake, they'll confirm Garland during the lame duck. but if obama would have nominated someone more liberal in the first place and forced their hand, they would currently be choosing between the more liberal candidate at hand or an even more liberal candidate under a HRC presidency.

ok so it's not that clear, sorry.

idk not really seeing them moving on garland. it does deny clinton a move but also means that the next court vacancy is clinton's first nom. she gets garland for free, no fight, no "political capital" expended. not that he's some great liberal prize, but versus scalia it's a huge change. tho otoh I doubt these bozos can think that far ahead.

If Garland got confirmed in a walk over the lame duck session, it would be quite a hoot to hear Turtle Man explain why he was wrong to tell the world incessantly how it Would Not be Fair to the American People not to let the Next President Fill the Vacancy.

It's Vox, so there's probably a bunch of things wrong with it, but I found this to be really interesting: http://www.vox.com/2016/8/22/12484000/supreme-court-liberal-clinton It goes into detail on the ways that a more liberal SC could change US politics, including for instance how voting rights restrictions would become almost impossible if the court began looking at them using a 'strict scrutiny' rather than 'undue burden' framework - since under strict scrutiny, the states would have to prove that voting fraud is a compelling problem, which every statistic shows it isn't, but the courts simply sidestep that issue atm.

The more I think about it, why wouldn't Republicans hold out for the next justice to drop or retire? Two of the three oldest are liberal and the other is Kennedy.

― socka flocka-jones (man alive), Thursday, June 16, 2016 3:40 PM (four months ago) Bookmark Flag Post Permalink

Good shot at a conservative majority 7-justice court. What do they have to lose?

― socka flocka-jones (man alive), Thursday, June 16, 2016 3:41 PM (four months ago) Bookmark Flag Post Permalink

i think that type of inaction would make them look extremely bad worse and might lead to some backlash, but maybe i overestimate the distaste that would engender.

― nomar, Thursday, June 16, 2016 3:56 PM (four months ago) Bookmark Flag Post Permalink

I guess maybe finding rhetorical cover for it would be too challenging? But "Republicans will never be able to find rhetorical cover for this" sounds like famous last words.

― socka flocka-jones (man alive), Thursday, June 16, 2016 3:56 PM (four months ago) Bookmark Flag Post Permalink

Surprised this hasn't come up yet, totally vindicating my prediction:

http://www.npr.org/2016/10/17/498328520/sen-mccain-says-republicans-will-block-all-court-nominations-if-clinton-wins

yes, they are going to do what they've been doing

Posted it upthread, man alive

wait really? Missing it somehow.

Dem senate wld pull nuclear option on the filibuster so fast to get SCOTUS noms through IMO

wait really? Missing it somehow.

― the last famous person you were surprised to discover was actually (man alive),

Sorry – it's in the politics thread.

What's changed since June is that the Dems now look to have a better chance of actually having a majority of the Senate, which at least makes that an option I guess. Need to brush up on the details of the nuclear option and related procedure though.

Not that this is exactly what we're talking about (re: obstructionism) but Kennedy being replaced by a Clinton nom would be A-OK with me btw. He's written some really powerful decisions (Lawrence and Obergefell obv.) but he's been a rightward tether on abortion and defendants' rights, not to mention gun control and, infamously, Bush v. Gore (though I'd like to think he winces at that one). Alito and Thomas seem like they're going to be around til the end of time - would be great if they were deprived of a "swing justice" on that stuff.

So like, that has nothing to do with getting past the Senate blockade - just saying that if "all" she's able to get is replacements for Scalia and, say, Ginsburg and Kennedy - especially if they are closer to Kagan's age when she joined the bench than Merrick Garland is - that's a major long-term win. I seriously doubt she can put on someone as reliably 'left' as Ginsburg, but that slate would probably mean, e.g., a final end to the decades of nickel-and-diming bullshit that's been happening to Roe v. Wade since Casey. I think Hellerstedt makes that pretty clear.

I doubt you'll find much love for Tony K, despite Obergefell, Romer, and Lawrence.

Not that this is exactly what we're talking about (re: obstructionism) but Kennedy being replaced by a Clinton nom would be A-OK with me btw. He's written some really powerful decisions (Lawrence and Obergefell obv.) but he's been a rightward tether on abortion and defendants' rights, not to mention gun control and, infamously, Bush v. Gore (though I'd like to think he winces at that one). Alito and Thomas seem like they're going to be around til the end of time - would be great if they were deprived of a "swing justice" on that stuff.

― DOCTOR CAISNO, BYCREATIVELABBUS (Doctor Casino), Monday, October 24, 2016 11:16 AM (fourteen minutes ago) Bookmark Flag Post Permalink

Yeah, and actually if Kennedy is the first to croak or retire you still get a majority liberal court. But the bigger picture is that the GOP wants to hold out and hope for a midterm anti-Clinton backlash in the Senate and a hopeful GOP president in 2021. Same logic of not having much to lose and a lot to gain but obstructing seems to apply. Any political damage is hard to quantify and intangible, but probably they consider a court majority for years to come to be more valuable than any fallout is harmful.

fwiw https://en.wikipedia.org/wiki/Nuclear_option

three-fifths votes still needed to override filibusters and confirm SC nominees. Dems will be able to do this with a majority (with a VP as the presiding officer), dunno if they will though.

Dems can get rid of filibuster for Supreme Court nominations by a majority vote. Here's an article about the possibility of using the nuclear option and there being no filibuster for Supreme Court nominees. Article is from back in March

http://www.politico.com/story/2016/03/liberals-supreme-court-filibuster-220806

To be clear they could get rid of the filibuster entirely w a majority vote

I'd just as much say an opposing party refusing to put a president's SC pick through the process is as "nuclear" as anything else.

We haven't run one of these in a while:

https://static01.nyt.com/images/2016/01/04/us/01scotus-web1/01scotus-web1-master768.jpg

Yes. The majority controls the rules of the Senate. It is by tradition and courtesy that the filibuster is maintained as an 'inviolable' rule. A cloture vote used to require 66 votes, but within my lifetime the rule was changed to 60 votes. The filibuster could be abolished at any time and replaced by a simple majority rule.

oh hey

http://talkingpointsmemo.com/dc/harry-reid-if-gop-blocks-scotus-in-2017-dems-should-go-nuclear-again

legislative jiggery-pokery!

doesn't a filibuster nuke have to happen when they set the rules at the beginning of a session (i.e. every two years)? or could a dem majority rig the rules to give them the option to nuke it later if the minority start filibustering?

while we're talking about rules and apropos of very little, i would like to complain about the so-called "hastert rule", which doesn't actually exist and never has. they should just call it the "hastert excuse for leadership failure".

Doesn't the Hastert rule have something to do with watching young men shower?

no one wants to wrestle with the Hastert Rule

the hastert rule forces the house to act like its parliament, which its not

this reminds me that trump used the phrase "nuclear option" literally in one of the debates i.e. the option of using nuclear weapons

http://www.newyorker.com/news/daily-comment/clarence-thomass-twenty-five-years-without-footprints

I believe Corey Robin is working on a book on him. Glad that piece does not repeat the canard that Thomas "just follows Scalia" or whatever.

to be fair, Toobin's been one of the guys pushing Clarence Thomas as evil genius

At night, he dons a crimson body stocking and fights crime. Under the name FISTS OF JUSTICE.

Thomas speaks:

WASHINGTON – Justice Clarence Thomas said Wednesday that the Supreme Court confirmation process is an example of how the nation's capital is "broken in some ways."

Thomas reflected on his 25 years as a justice while speaking at the Heritage Foundation, the conservative think tank where his wife once worked.

The 68-year-old Thomas went through a very contentious confirmation in 1991, when he faced allegations that he sexually harassed Anita Hill when they were colleagues in the federal government.

At the time, Thomas, who would become the second African-American to serve on the court, called televised Senate hearings about Hill's claim a "high-tech lynching."

Looking back, he said Wednesday that "I think we have decided that rather than confront disagreements, we'll just simply annihilate the person who disagrees with me. I don't think that's going to work in a republic, in a civil society."

He did not mention the stalled Supreme Court nomination of Judge Merrick Garland. President Barack Obama nominated Garland in March to take the seat of the late Justice Antonin Scalia.

Thomas defended his willingness to question Supreme Court rulings more often than anyone else on the court. He said justices often are selective about what they want to preserve.

"When people get what they want, then they start yelling stare decisis," he said, using the Latin term for respecting precedents.

He delivered one barbed quip about Obama's health care law, which Thomas voted to strike down in 2012. He said the title of the law, the Affordable Care Act, "seems like kind of a misnomer considering all the things that are going on." The administration this week announced rate increases for health insurance plans under the law.

Thomas fondly recalled Scalia as someone he could trust, even when they disagreed. Their disagreements often could be about cultural issues.

Scalia, a hunter from the North, teased the Georgia-born Thomas about his dislike of hunting. "I told him no good comes from being in the woods," Thomas said.

Then there was opera, a passion of Scalia's. Using Scalia's nickname, Thomas related that he would tell his friend: "Nino, I like opera. I just don't want to be around the people who like opera."

Then there was opera, a passion of Scalia's. Using Scalia's nickname, Thomas related that he would tell his friend: "Nino, I like opera. I just don't want to be around the people who like opera."

― Οὖτις

opera is the jandek of the ruling elite

Scalia, a hunter from the North, teased the Georgia-born Thomas about his dislike of hunting. "I told him no good comes from being in the woods," Thomas said.

I'm trying to imagine these two starring in a production of Waiting For Godot.

"I am Antonin Scalia, hunter from the North.>"

http://bloximages.chicago2.vip.townnews.com/starherald.com/content/tncms/assets/v3/editorial/5/4b/54b997be-62dd-54c0-8f2a-9074b7d12507/56c649704f689.image.jpg?resize=300%2C400

The North forgot.

oh and also

https://www.washingtonpost.com/politics/courts_law/alaska-lawyer-says-justice-clarence-thomas-groped-her-at-a-party-in-1999/2016/10/27/5aecf37a-9c52-11e6-a0ed-ab0774c1eaa5_story.html

well the new Trump/Ailes network probably needs a legal analyst

this would require him to speak

96 year-old retired Supreme Court Justice John Paul Stevens in the news for attending the World Series this year, and in 1929 and 1932

http://www.chicagotribune.com/news/local/breaking/ct-cubs-justice-stevens-called-shot-met-20161026-story.html

http://talkingpointsmemo.com/dc/legal-experts-fear-gop-threats-to-blcok-scotus-noms-under-clinton

seems increasingly likely to happen, gop blocks any hearings on nominees and argues that "there is historical precedent for a smaller court"

Which given the tilt of a lot of the Appeals Courts these days may not exactly be their ideal scenario.

I'm sure they've gamed it out vs the risk of having a liberal majority for another couple decades.

Really wish I could have made some kind of predictwise-type bet on this happening back in June when I called it.

if the dems win the senate it won't matter, they can just do away with the filibuster

yeah but tradition