U.S. Supreme Court: Post-Nino Edition

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

Senate doesn't seem to give much of a fuck about tradition these days

just naked partisan warfre

warfare

Today the court hears oral argument in National Labor Relations Board v. SW General, Inc., a case that involves the president’s power to make temporary appointments to Senate-confirmed executive branch positions.

http://www.scotusblog.com/2016/11/monday-round-up-325/#more-248389

rip Nino :(

i can't even handle reminding myself that scalia died in FEBRUARY and gop got away w/ this shit

fuckin a

Does Roberts watch or read about the news and think about how his Shelby 5to 4 opinion has impacted voting rights in a negative, seemingly unconstitutional way?

Based on this article, probably not

http://www.motherjones.com/politics/2016/10/colorblind-justice-john-roberts-voting-rights-north-carolina

Seems like Trump's election is a new era. Not saying it requires a new thread, but if I were writing a history the post-Scalia and the post-trump would have their own chapters.

The 4-4 post-Scalia split feels like a fleeting european republic, and the Trump era the dictatorship that followed

http://www.msnbc.com/rachel-maddow-show/dem-senator-supreme-court-seat-being-stolen?utm_source=dlvr.it&utm_medium=twitter

As recently as Tuesday – literally, the morning of Election Day – Sen. Roger Wicker (R-Miss.) became the latest Republican senator to raise the prospect of confirming Supreme Court nominee Merrick Garland during the lame-duck session. This was not an uncommon posture within the GOP: Wicker and others believed Hillary Clinton would win the election, so confirming President Obama’s compromise choice would be preferable to whomever Clinton picked in 2017.

Except, of course, these same Senate Republicans were as surprised as everyone else to discover that Americans had actually elected Donald Trump. The lame-duck confirmation plan wouldn’t be necessary after all – because the GOP’s Supreme Court blockade scheme, once thought to be a historic mistake, had worked like a charm.

Sen. Jeff Merkley’s (D-Ore.) outrage is well-grounded – and perhaps too rare given the circumstances.
A Democratic senator accused the GOP of “theft” for blocking President Barack Obama’s nominee for the U.S. Supreme Court so it can be filled by the Trump administration.

“We really have to pay attention to the Supreme Court seat. The seat that is sitting empty is being stolen,” Sen. Jeff Merkley told MSNBC’s Chris Hayes on Thursday night. “It’s being stolen from the Obama administration and the construct of our Constitution. And it’s being delivered to an administration that has no right to fill it.”

The Oregon Democrat added, “There’s no legitimacy to a Supreme Court justice in a seat that’s been stolen from one administration and handed to another. We need to do everything we possibly can to block it … it won’t be DOA unless the American people understand that this is the theft of the court.”

it is a total catastrophe, and it's likely to be relatively forgotten by the public, if nothing else due to the insane number of other catastrophes going on. also due to how few people really understood the theft that was taking place in the first place, after republicans refused to appoint a successor back on fucking FEBRUARY 12

Fuck yes, more Merkleys please.

Obama should recess appoint Garland asap