You can’t change the rules just because you realize you are losing

It is bitter irony that the week in which President Obama talked about the “yawning gap between the magnitude of our challenges and the smallness of our politics” and addressed the nation about the hyperpartisan state of American politics, would end in a political argument over whether a sitting president has the right to nominate anyone for a Supreme Court vacancy.

No sooner had the news hit the wires that Supreme Court Justice Antonin Scalia had died, than Senate Majority Leader Mitch McConnell announced that the president needed to leave it up to the people and wait for the next election to fill the vacancy. Followed a few hours later by Senator Chuck Grassley, chairman of the Senate Judiciary committee, saying that no president had ever nominated a Supreme Court justice during an election year.

Wrong and wrong.

The people have already voted for who they want to nominate Supreme Court justices for vacancies occurring from January 2013 through January 2017 – it was called “The Election of 2012”. President Barack Obama won (you can google it). And there were dozens of times when a president nominated a justice who was confirmed in an election year, the latest one was in 1988 when Republican Ronald Reagan nominated Anthony Kennedy in 1987. He was later confirmed by a 97 to 0 vote in the Democratically controlled Senate in February of 1988, an election year and the last year of Reagan’s presidency.

The sitting president, Barack Obama in his statement yesterday evening:

I plan to fulfill my constitutional responsibilities to nominate a successor in due time. There will be plenty of time for me to do so, and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote. These are responsibilities that I take seriously, as should everyone. They’re bigger than any one party. They are about our democracy. They’re about the institution to which Justice Scalia dedicated his professional life, and making sure it continues to function as the beacon of justice that our Founders envisioned.

President Obama has no intention of just letting the clock run out on his presidency … and he has no intention of letting the bitter party of NO nullify the election of 2012. He will respect the will of the American people who elected him with overwhelming numbers in 2008 and 2012 and fulfill his constitutional duties.

And Senator McConnell? You may have just handed our nominee the biggest election year gift ever. If you tell the nearly 66 million people who voted for President Obama that their votes do not matter, you can expect that they will have a reply for you: at the polls in November.

Elections matter. Let’s show the Republicans that We The People don’t appreciate their having two sets of rules: one for their presidents and one for ours.


  1. When they say “It’s the Supreme Court”, they aren’t just kidding. If we spend the rest of the year with an 8 person court, the Republicans will have succeeded in shutting down two branches of government.

    The only way We The People are allowed to express our opinion is by exercising our right to vote. Let’s redouble our efforts to win back the Senate – and make sure that a Democratic president is making the nominations for January 2017 through January 2021.

  2. Lyle Denniston at SCOTUSblog on the possibility of a recess appointment (a temporary justice):

    Could President Obama make a nominee during that recess? Only if the Senate is taking a recess lasting longer than three days, and does not come in from time to time during that recess to take some minimal legislative action. Both of those circumstances would be entirely within the Senate’s authority.

    In that circumstance, a recess appointment to the Court would not be within the terms of the Constitution, as spelled out in Article II.

    The same situation would likely apply when this year’s Senate session comes to an end, and the senators take a recess before the next Congress assembles.

    The bottom line is that, if President Obama is to successfully name a new Supreme Court Justice, he will have to run the gauntlet of the Republican-controlled Senate, and prevail there. The only real chance of that: if he picks a nominee so universally admired that it would be too embarrassing for the Senate not to respond.

  3. Whigs!! Yes, The Senate Arbitrarily Blocked A SCOTUS Nom Before–In The Mid-1800s

    Senate Republicans can claim some precedence for blocking any of President Obama’s nominees to replace the late Justice Antonin Scalia until a new president is elected — if they reach back to the mid-1800s.

    The GOP’s insistence — immediately upon news of Scalia’s death — that the Supreme Court must wait until the next president to gets its ninth seat refilled is not unprecedented, but is nonetheless very rare. In fact, all the unsuccessful Supreme Court nominees of the last century ran into problems because of their own traits, rather than some arbitrary obstruction aimed at the president.

    The closest comparison to the wholesale rejection President Obama is about to face with his nominee is President John Tyler, who holds the unenviable record of having four of the five men he put forward fail to make it to the Court. The fight was part of a larger clash between Tyler and the Whig-controlled Senate, where Whig lawmakers hoped Sen. Henry Clay of Kentucky would win the next presidential election in 1844.

    This is fitting because the Whigs are the closest correlation we have to the Teaparty Republicans, elevated to power by angry voters and swept away (we hope!) into the dustbin of history.

    • Some more historical perspective from Amy Howe at SCOTUSblog: Supreme Court vacancies in presidential election years

      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.

  4. Senate Majority Leader Mitch McConnell on the will of the people:

    Mitch McConnell released a statement on Saturday asserting that Barack Obama should not get to select the next Supreme Court Justice because “the American people should have a voice.” […]

    Mitch McConnell was last reelected with 806,787 votes. Barack Obama was reelected with 65,915,796 votes.


    The “winning” politics of obstruction:

    the Republicans in the Senate have no reason to confirm his appointee when they believe they stand a chance to take back the White House and put their own justice in place. And Obama can try to pressure the blue state Republicans up for re-election this term, but the odds of him winning the four necessary Republicans are probably not strong. The issue is likely to dominate this year’s Senate races in competitive blue states where control of the chamber lies.

    What’s more, it cannot even be taken for granted that, if Democrats win in November, Republicans will allow a Democratic justice to replace Scalia in 2017, either. Senators used to furnish what were viewed as qualified mainstream appointees with wide, bipartisan support. Increasingly, Senators vote against any justice nominated by a president of the opposing party. The notion that the Senate needs to let the president appoint somebody to a vacant Supreme Court seat is nothing but a social norm, and social norms in modern politics have a short lifespan.

  5. Election implications …

    U.S. Supreme Court vacancy upends presidential race

    Facing off in a debate only hours after the 79-year-old Scalia’s death was announced, some Republican presidential candidates seized the moment to caution voters that their party’s front-runner, billionaire businessman Donald Trump, could not be trusted to nominate a stalwart conservative.

    “If Donald Trump is president, he will appoint liberals,” charged U.S. Senator Ted Cruz of Texas during the debate in South Carolina, which holds a Republican nominating contest next Saturday. […]

    “There is no more clarifying debate in politics these days then when it comes to Supreme Court nominees,” said Jim Manley, a Democratic strategist and former aide to Senator Harry Reid of Nevada. “This now is for all the marbles.”

    Reid was majority leader of the Senate when it confirmed previous Obama court nominees Sonia Sotomayor and Elena Kagan. Manley called McConnell’s threat not to allow a vote on a potential Scalia replacement “completely beyond the pale.”

    Democratic candidate Hillary Clinton seemed inclined to make McConnell’s threat a campaign issue.

    “The Republicans in the Senate and on the campaign trail who are calling for Justice Scalia’s seat to remain vacant dishonor our Constitution,” Clinton said in a statement.

    Axelrod said that the issue could help Clinton, locked in a tight race with U.S. Senator Bernie Sanders of Vermont.

    “I think it will make electability and experience in this realm more important,” he said.

  6. These are plenty of names being floated for the nomination. Of all of them, this one seems the most promising.

    Sri Srinivasan: The 48-year-old federal appeals court judge was confirmed unanimously in 2013 for a seat on the U.S. Court of Appeals for the D.C. Circuit — a traditional stepping-stone to the Supreme Court. He would be the court’s first Indian-American justice.

      • I don’t know! Is the concern his Indian-American heritage? We should do some research on his rulings.

      • Here are a few things. He is 48 years old which makes him a pick for the future, not a placeholder.

        From Wikipedia:

        Srinivasan was born Padmanabhan Srikanth Srinivasan in Chandigarh, India. His father hailed from Mela Thiruvenkatanathapuram, a village near Tirunelveli, Tamil Nadu. His family, including two younger sisters, migrated in the late 1960s to Lawrence, Kansas. His father was a professor of mathematics at the University of Kansas, and his mother taught at the Kansas City Art Institute and later worked at the University of Kansas computer science department. Srinivasan graduated from Lawrence High School in Lawrence, where he played basketball.

        Srinivasan earned a bachelor’s degree in 1989 from Stanford University and then earned a J.D./M.B.A. in 1995 from Stanford Law School and Stanford Graduate School of Business.

        After law school, Srinivasan worked as a law clerk for United States Court of Appeals for the Fourth Circuit Judge J. Harvie Wilkinson III and then was a clerk for U.S. Supreme Court Associate Justice Sandra Day O’Connor. […]

        His Senate confirmation hearing on April 10, 2013 was uneventful.[15] His nomination was reported to the floor of the Senate on May 16, 2013, by a unanimous vote of 18 ayes to 0 nays. A final vote on his nomination took place on May 23, 2013, where he was confirmed 97–0


        From Mother Jones back in 2013: Who Is Sri Srinivasan, Obama’s “Supreme Court Nominee in Waiting”?

        “I don’t think anybody is going to suggest that he’s being put forth as the next Thurgood Marshall or Justice Brennan. He does not come out of that kind of background,” says Caroline Fredrickson, president of the progressive American Constitution Society. But, she argues, he is “extremely well qualified” and “probably has the perfect resume for anyone who would be nominated to the DC Circuit.” Doug Kendall, president of the liberal Constitutional Accountability Center, calls Srinivasan “unquestionably brilliant” but acknowledges that Srinivasan’s record “is not progressive-forward; it is as non-ideological as you can find.” […]

        The White House can also point anxious liberals to Srinivasan’s work in Obama’s solicitor general’s office, and to pro bono briefs he filed opposing Indiana’s restrictive voter ID law and supporting affirmative action. […]

        Attorneys don’t always share the views of the clients they represent—in fact, depending on the types of cases they take, they often don’t. They are simply doing a job for a client. But by that token, none of the work Srinivasan has done on behalf of the Obama administration should necessarily reassure liberals that Srinivasan’s views on legal matters are closer to those of Justice Ruth Bader Ginsburg than to Chief Justice John Roberts.


        WaPo, yesterday: Who will be Obama’s nominee to replace Scalia on the Supreme Court?

        He has the sort of impeccable credentials that are much beloved by the Supreme Court bar, though Srinivasan’s own views on the Constitution are more difficult to discern. He has written many briefs but few articles that reveal his own thinking. He is a protégé of Walter Dellinger, the acting Solicitor General in the Clinton Administration and a (mostly) beloved (mostly) liberal figure in the world of the Supreme Court. The safe assumption seems to be that Srinivasan would be the same kind of moderate liberal as Sonia Sotomayor and Elena Kagan (and Ruth Bader Ginsburg and Stephen Breyer, for that matter).

        I am sure we will hear more. Ted Cruz voted for him in 2013 for the DC Circuit but then so did just about everyone else.

  7. Thanks for all of this – spent a little time at SCOTUSblog but haven’t had a chance to really mull over any of this yet.

    Will fight even harder to get a Democrat in the WH – because SCOTUS is going to shape so much of the future.

    • Tom Goldstein is a pretty good source of information. He is the owner of SCOTUSblog and pleads cases in front of the court all the time.

      Here is his summary:

      If Justice Scalia was part of a five-Justice majority in a case – for example, the Friedrichs case, in which the Court was expected to limit mandatory union contributions – the Court is now divided four to four. In those cases, there is no majority for a decision and the lower court’s ruling stands, as if the Supreme Court had never heard the case. Because it is very unlikely that a replacement will be appointed this Term, we should expect to see a number of such cases in which the lower court’s decision is “affirmed by an equally divided Court.”

      The most immediate and important implications involve that union case. A conservative ruling in that case is now unlikely to issue. Other significant cases in which the Court may now be equally divided include Evenwel v. Abbott (on the meaning of the “one person, one vote” guarantee), the cases challenging the accommodation for religious organizations under the Affordable Care Act’s contraceptive mandate, and the challenge to the Obama administration’s immigration policy.

      The Court is also of course hearing a significant abortion case, involving multiple restrictions adopted by Texas. In my estimation, the Court was likely to strike those provisions down. If so, the Court would still rule – deciding the case with eight Justices.

      Conversely, the Court was likely to limit affirmative action in public higher education in the Fisher case. But because only three of the liberal Justices are participating (Justice Kagan is recused), conservatives would retain a narrow majority.

      So we would win on Friedrichs, because the 9th Circuit ruling would affirm the union’s position. We would likely still prevail in the Texas abortion clinic case (to be heard in March). The Evenwel case would at least not be a loss probably delaying the one person one vote issue to another term (we prevailed in the lower courts). The contraceptive mandate would result in utter chaos because the case was taken up because of Circuit conflicts: there would be different laws for different parts of the country if they reverted to the Circuit Court decisions!

      The murkiest would be the DAPA/DACA. Right now the only ruling is the stay issued at the district court level. SCOTUS was going to hear arguments about whether that stay should be lifted to allow the president his prosecutorial discretion. If that splits 4-4, the stay remains in place so the administration would have to convince Roberts or Kennedy to switch sides.

      No one knows how Clarence Thomas will vote on anything now because he basically was “what he said”, following Scalia’s voting pattern. Maybe, with no trail of breadcrumbs for him to follow, he will recuse himself from all future decisions? :)

    • And, yes, we absolutely must win the presidency in November. The electability argument just got huge.

  8. Commentary from WaPo: If Republicans block Obama’s Supreme Court nomination, he wins anyway

    The GOP might soon reconsider [their obstruction] if they see the implications of refusing to allow Obama to replace Scalia: A divided court leaves lower court rulings in place. And the lower courts are blue. Nine of the 13 U.S. Courts of Appeals have a majority of Democratic appointees. That means liberal rulings conservatives were hoping the Supreme Court would overturn remain law. […]

    [Most of the country] is governed by appeals courts dominated by Democrats. The suit against Obama’s environmental initiative, which the Supreme Court just stayed, came from the liberal D.C. Circuit, which had unanimously refused to grant the stay. Now the Obama administration can simply have the Environmental Protection Agency come up with a slightly different new plan and run to the liberal D.C. courts to bless it and refuse to stay it. It’s unlikely the now-divided Supreme Court would come up with a majority to stay the new rules: The vote to stay the old ones was (naturally) 5 to 4. […]

    Right now, McConnell sounds like he doesn’t recognize the peril his party is in. If Obama signals that he’s willing to take advantage of the situation by taking actions like passing new environmental rules or moving for rehearing in the pending cases, he’ll put pressure on the Senate by getting what he wants without his court pick. Two-thirds of the people in the country live in blue-court America.

    How far can that leverage go?

    Imagine the glee in the most-reversed circuit court in the nation, the liberal Ninth, which will now be able to tell Arizona and Alaska what to do without fear of contradiction. If Obama really cares about that legacy, nothing would establish it more firmly than using his unexpected advantage to appoint someone who will one day be as much of a hero to liberals as Scalia was to conservatives.

    From your keyboard to the goddess’ ears, Linda Hirshman!

  9. Charlie Pierce was peeking in my paste buffer!!

    In 2012, the “American people” decided that Barack Obama should appoint justices to the Supreme Court to fill any vacancies that occurred between January of 2013 and January of 2017. Period. Just because Mitch McConnell is a complete chickenshit in the face of his caucus doesn’t obviate that fact. The 36 percent of eligible voters who showed up for the 2014 midterms, the lowest percentage in 72 years, don’t get to cancel out the expressed wishes of the majority of the 57.5 percent of eligible voters who turned out to re-elect the president in 2012. And before this meme really picks up steam, 17 justices have been confirmed during election years, including Roger Taney, which sucks, in 1836, Lewis Powell and William Rehnquist, who were appointed in 1972, and Anthony Kennedy, who was appointed in 1988.

    (And it should not be necessary to point out that any argument made by this Congress on the basis of political tradition or legislative politesse inevitably will cause Irony to shoot itself in the head.)

    On the election, amen:

    Up until now, the idea of control of the Supreme Court as a campaign issue was a vague threat, a monster in the closet. Now it is very real and very immediate. If Scalia’s tenure is any guide, this is now a presidential election to decide the course and purpose of government for the next 30 years. That makes it the most consequential election of recent times.

  10. Captured from the Twitterings last night and this morning:

    Political Line ‏@PoliticalLine 2h2 hours ago

    Toomey, Ayote, Ron Johnson, Mark Kirk, and Rob Portman will have to explain all year why we dont need a 9th justice in blue states

    wisgrrl ‏@wisgrrl 15h 15 hours ago

    Carson says the Constitution doesn’t address a Justice dying and how the appointment should proceed. You just heard me slap my forehead.

    Greg Mitchell ‏@GregMitch 15h 15 hours ago

    And now a moment of silence for all the evil done and lives harmed by Scalia. Thank you.

    Alec MacGillis ‏@AlecMacGillis 15h 15 hours ago

    In era when one party wins high-turnout elections and another wins low-turnout ones, something that riles up electorate benefits the former.

    John Legend ‏@johnlegend 15h 15 hours ago

    Press: You know the GOP will come up with some ridiculous reason why Obama shouldn’t nominate a justice. Your job is to call them on it.

    Sahil Kapur ‏@sahilkapur 16h 16 hours ago

    HILLARY CLINTON: “Republicans…who are calling for Justice Scalia’s seat to remain vacant dishonor our Constitution.”

    Steve Benen ‏@stevebenen 16h 16 hours ago

    Legitimacy of the American political system isn’t tested all that often. Unsettling to see GOP boasting about their plan to flunk this test.

    Starting Line ‏@IAStartingLine 16h 16 hours ago

    Also, for any GOPer saying we should “defer to the American people,” they already decided when they voted for Obama’s re-election

    Erin Matson ‏@erintothemax 16h 16 hours ago

    Scalia was confirmed 98-0. Senators. Let that — and the demand that no one fill his seat for at least a year — sink in.

    Taniel ‏@Taniel 16h 16 hours ago

    If GOP really blocks an Obama appointee for 11+ months, wld the incoming Dem majority use nuclear option to allow 51-vote confirmations?

    Roger Simon ‏@politicoroger 16h 16 hours ago

    Ruth Bader Ginsburg on Antonin Scalia: “I disagreed with most of what he said, but I loved the way he said it.”

    Ryan Lizza ‏@RyanLizza 17h 17 hours ago

    Kind of ironic that some Republicans want to re-write the Appointments Clause as a way of getting another originalist on the Supreme Court.

    Glenn Thrush @GlennThrush

    Ladies and gentlemen — don’t get spun — there’s nothing normal/routine about Senate leader telling a president not to even try a nominee

    Michael Cohen ‏@speechboy71 17h 17 hours ago

    GOP should be careful what they wish for in blocking Scalia’s replacement – they’re handing HRC a great, mobilizing issue for November

    Adam Jentleson ‏@AJentleson 17h 17 hours ago

    At some point, Senator McConnell needs to finally accept and respect the fact that the American people elected President Barack Obama.

    Greg Pinelo ‏@gregpinelo 17h 17 hours ago

    America decided which president who gets to fill Supreme Ct. vacancies in 2016 back in 2012, There is no “unless he’s black” clause.

    Jon Favreau ‏@jonfavs 17h 17 hours ago

    Republicans rejected the President’s constitutional right to fill a Supreme Court vacancy before he’s named a nominee. Think about that.

    Joy Reid ‏@JoyAnnReid 18h 18 hours ago

    This morning, Democrats had the luxury of debating liberal purity. Tonight they must decide who could prevent a Trump or Cruz SCOTUS.

    • Some were saying that President Obama is a lame duck (he isn’t a lame duck until the election is called on November 8th) but this graphic accompanying one of those Tweets made me laugh out loud:

      Fear the Duck!!!

  11. Ten gets you twenty that the crappy media won’t call out the Rethugs on this business of not letting an elected president nominate a Supreme Court justice while black.

    Let’s see, if he nominates Srinavasan and the Rethugs obstruct, they’re HANDING Asians a reason not to vote Rethug.

    • There will be a political price to pay if they refuse to let President Obama finish his 2nd term. Tom Goldstein at SCOTUSblog:

      Attorney General Loretta Lynch, who is fifty-six, is a very serious possibility. She is known and admired within the administration. At some point in the process, she likely would have to recuse from her current position, but the Department of Justice could proceed to function with an acting head. Her history as a career prosecutor makes it very difficult to paint her as excessively liberal.[…]

      I think the administration would relish the prospect of Republicans either refusing to give Lynch a vote or seeming to treat her unfairly in the confirmation process. Either eventuality would motivate both black and women voters.

      A conservative writer pointed out that the most reliable Democratic Party voting bloc is African-Americans and that keeping their turnout high is critical to our keeping the White House … and getting a chance to fill that seat if the Republicans shamelessly stonewall. Here are the numbers:

      The big concern Democrats have (or should have) about 2016 is the decline in turnout that occurred between 2008 and 2012. Obama’s support dropped by 3.6 million votes between his election and his re-election.

      What saved Obama was the loyalty and commitment of African Americans: their participation actually increased between 2008 and 2012—and it was their ballots that provided the president with his margin of victory. If they should feel uninspired in 2016, the Democratic nominee is likely doomed. Democrats will want to do everything they can to rev up African American excitement and energy.

      Start revving!!

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