Skip to comments.The Supreme Courtís Coming Paralysis
Posted on 07/24/2014 4:00:50 AM PDT by 2ndDivisionVet
Why theres really no chance President Obama will be able to appoint another Justice to the bench, regardless of what happens in November.
Its a question thats roiled the liberal universe for years: Why wont 81-year-old Supreme Court Justice Ruth Bader Ginsburg resign from the Supreme Court and give President Obama the chance to pick her successor, in case the Senate turns Republican after the mid-terms?
Harvard Law Professor Laurence Tribe, one of the lefts jurisprudential heroes, had a ready answer to that question when it was posed to him at the University of California Santa Barbara late last month. There is, he said, not a chance in hell that this Senate would confirm her successor, no matter who he or she might benot the way the process works today. And therein lies a tale about just how drastically the advise and consent process has changed, and why the smart bet would be on a paralyzed process, and perhaps even a Court with fewer than nine Justices, no matter what happens in November.
Once upon a time, the Senate took that advise and consent phrase of the Constitution literally: They sometimes advised, but almost always consented, to a Presidents choice. From 1894 to 1967, only one Supreme Court nominee was rejected. (It was 1930, and as the Great Depression deepened, Judge John Parkers alleged anti-labor and anti-civil rights rulings were deemed disqualifying). There were other controversial pickslawyer Louis Brandeis was assailed as a dangerous radical when President Wilson named him to the bench in 1913 (and there was more than a hint of anti-Semitism in the opposition); Alabama Senator Hugo Black had to go on national radio to explain his membership in the Ku Klux after FDR named him in 1937.
But it wasnt until 1968 that a President found his Supreme Court pick blocked. When Lyndon Johnson sought to elevate Justice Abe Fortas to the Chief Justice post to replace Earl Warren, a coalition of Southern Democrats and Republicans, angered by his liberal votes on civil liberties, his continued political counseling of LBJ, and some dicey financial dealings, successfully filibustered the nomination. (Republicans also hoped to stall the nomination, hoping their nominee could capture the White House in November. That strategy not only worked, but those financial dealings were to force Fortas off the Court a year later).
At that point, the process took a sharply different turnto outright rejection of a nominee. President Nixons choice of Judge Clement Haynesworth to replace Abe Fortas was soundly defeated, 55-45, by senators who believednot entirely accuratelythat Haynesworth had demonstrated anti-labor and pro-segregationist tenancies in his rulings, and that he had had a financial interest in one of the cases he helped decide.
Nixons second nominee, Federal District Judge Harrold Carswell, may well have been the single least qualified nominee ever, fusing judicial incompetence with a political history of embracing white supremacy. Carswells reputation drew a famous defense by Senator Roman Hruska, who argued, "Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Frankfurters and Cardozos. (Hruskas choice of three Jewish Supreme Court justices was duly noted). Carswells nomination was rejected by a 51-45 vote.
In these two cases, something other than ideology was, at least ostensibly, at stakequalifications or some kind of impropriety. That may be one explanation, perhaps, for the remarkably bipartisan nature of the votes. Nine Democrats voted for Hayneswroth; 17 Republicans voted against the nomination; 17 Democrats backed Carswell; 13 Republicans voted against him.
Not so in the case of Judge Robert Bork, whose background as a Yale law professor and federal judge made him clearly qualified on intellectual grounds. The case against Bork was, in the broadest sense of the word, politicalthat his views on privacy, civil rights, and other issues put him outside the mainstream. Senator Ted Kennedy unleashed one of the harsher assessments ever aimed at a high court nominee when he said: Robert Borks America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government It was, to put it mildly, a reach. But the argument, along with Borks less than winning personality in the witness chair, led the newly Democratic Senate (with the help of six Republicans) to reject the nomination by a decisive 58-42 margin.
It was a faction of Senate Democrats that saved the nomination of Clarence Thomas in 1991. After the unprecedented charges and counter-chargesof sexual harassment, perjurious witnesses, and a nominees bitter accusation of a high-tech lynching10 Democrats, from the still-significant moderate-conservative wing of the party, voted to confirm him.
The Clarence Thomas nomination was the last time a Senate controlled by one party approved the nomination made by the President of another party.
This might be considered highly significant, except that the Thomas nomination was the last time a President of one party offered up a nomination to a Senate controlled by the other party. By a quirk of the calendar, Bill Clinton faced two vacancies that opened up in 1993, when Democrats had a 57-seat majority; in the six years after Democrats lost the Senate in 1994, there were none. George W. Bushs two nominations came when his party had 55 seats; there were no vacancies after Democrats won the Senate in 2006. Obama named Sotomayor and Kagan when his party had a near-super majority 60 votes; there have been none since the 2010 midterms sharply reduced the Democratic edge.
And while no President since George H.W. Bush has had to offer a nomination to an opposition controlled Senate, all recent Presidents have had the benefit of virtual unity in their own parties. Only two Republicans voted against Clarence Thomas: Vermonts Jim Jeffords, who would bolt the GOP a decade later, and Oregons Bob Packwood, whose own entanglement with sexual harassment charges would force him out of the Senate four years later.
Since then, whether nominations have succeeded overwhelmingly (Ginsburg, Breyer) or with substantial opposition (Alito, Sotomayor, Kagan), only one member of the Presidents party has ever voted thumbs down. (It was Rhode Islands Lincoln Chaffee, now the states independent governor, who voted against Samuel Alitos confirmation).
This might suggest that the future of any prospective Obama nomination will turn on who winds up controlling the Senate; except, of course, it doesnt. When Senate Majority Leader Harry Reid invoked the nuclear option last November, which ruled the filibuster out of order with respect to lower federal court judges, he explicitly exempted the Supreme Court. That, of course, only explains what a Senate minority can do. Its the current political climate that tells us what Senate Republicans, whether in the majority or minority, are likely to do.
The best way to see how different the terrain is today is to look back on past contentious nominations and ask why a determined minority did not filibuster them to death. The short answer comes from the last scene of Ibsens Hedda Gabbler. After the protagonist shoots herself, a shocked Judge Brack exclaims: Good God! But people dont do such things! Even during the intensely passionate debate over Clarence Thomas qualifications, behavior, and candor, it did not occur to his opponents to block his nomination; instead, it went to a vote, and a 52-48 majoritythe narrowest margin ever for a nomineeconfirmed him. When George W. Bush named Samuel Alito to replace the centrist Sandra Day OConnor in 2005a choice certain to shift the balance of the Court dramaticallyonly 25 of the 44 Democrats backed the filibuster.
Now ask yourself a question about todays Senate: How many of the 45 Republicans now in the Senate would break with their party and vote to end a filibuster of an Obama Supreme Court appointment? How many would risk a Tea Party primary opponent, or a talk radio onslaught, and step away from a fight to stop Obama from putting a pro-choice, living Constitution Justice on the Court for the next generation?
And if that meant leaving the Court with only eight justicesor seven, should a second vacancy developthe Republican minority would be more than happy to live with that. Theres nothing that requires the Congress to fill all nine positions on the Court. Indeed, the case for leaving a seat empty was made by a prominent academic liberal, after the contested 2000 election. Yale Law professor Bruce Ackerman argued then that when sitting justices retire or die, the Senate should refuse to confirm any nominations offered up by President Bush until 2004, when the country could decide the legitimacy of Bushs tenure. (As it happened, there were no vacancies in his first term, and Bush won a clear, if narrow, victory in 2004.) Given the zeal with which the Republican base argues that Obama is a lawless, Constitution-shredding chief executive, it is an easy step to argue that we should wait until a new chief executive is chosen in 2016.
If this analysis is correct, then what happens in November almost doesnt matter. Yes, a Republican Senate takeover would give the GOP control of the Judiciary Committee, which means that all federal judicial nominations might die a slow but certain death. But even if the Democrats hold the Senateeven if, by some hard-to-imagine turns of events they kept their 55-seat majoritythe likeliest outcome of any Supreme Court nomination is a filibuster and a vacancy or two that will endure until the country chooses a new President.
The author’s underlying premise here is flawed. The Republican Party would never filibuster a Supreme Court nominee named by Barack Obama ... even if Osama bin Laden was the nominee.
Well there are several Republican parties. I gather you’re talking about the one infested by John Cornyn, Marco Rubio, Mitch McConnell, John McCain, Mitt Romney, John Boehner and that lot, right?
The author confuses “Republican Party” with “conservatives.” There is a very small conservative contingent in Washington, D.C. This doesn’t change even if the Republican Party controls the White House and both Houses of Congress.
I would hope Republicans would filibuster Larry Tribe! The author actually was hopeful of being nominated at one time.
Talk about divisive! His tone in this article is evenly measured given his deep-seated ideological leanings.
“The authors underlying premise here is flawed. The Republican Party would never filibuster a Supreme Court nominee named by Barack Obama ... even if Osama bin Laden was the nominee.”
After some perfunctory objections and weeks of anti-Repub bashing by the media even a Repub majority in the senate would approve whatever psychotic leftist Ob@st@rd nominated.
The fact that Tribe has been a player in the politicization of the Supreme Court in recent decades — and yet offers such a totally flawed analysis of today’s political scene — reinforces my belief that “legal scholars” are among the most marginal, overrated people you’ll meet these days.
It has become the practice for a justice to announce his retirement effective upon the confirmation of his successor. So the “vacancy” is conditional and the Court continues to function with 9 justices as the confirmation process creaks along. I think this is a change in recent decades. Now, if a justice were to die or actually leave the court, I think we would see a much faster process.
In the unlikely event that the GOPe held its ground, for Obama, it would soon no longer matter what the Supreme Court did. He would simply rule by decree disguised by some confusing complex legal obfuscation.
Harry Reid would simply extend his filibuster ban to SCOTUS nominees, and Obama would get his LGBT/Muslim/La Raza nominee confirmed easily.
The question is why doesn’t Ginsberg retire?
She is old, and she is sick (and I think a case could be made that she is no longer up to the job, perhaps her clerks are doing all the real work).
But why hang on? She could have retired when the Democrats were in full control and could have nominated and have confirmed any far left extreme person.
So why didn’t she, and why is she hanging on now?
I don’t have an answer but I think it would prove interesting when (if) the truth is ever known.
If Harry Reid is still majority leader, what makes the author not even consider the highly probable likelihood that Reid would change the rules of the Senate without hesitation (by outlawing filibusters of Supreme Court nominees) if it suits his party politically?
The only reason he hasn’t done so yet is that there was no vacancy at the time. The Democrats needed to pack the lower courts with political nominees, so that’s the rule that Harry Reid needed changed. And he did. Anyone who thinks he wouldn’t do it again for expediency’s sake is a fool. The man is obviously shameless, and he can expect the same compliance from the media as when he did it the first time.
And the Democrats would use empty Supreme Court seats as a bludgeon. “The Republicans won’t do their duty!” and “Vote for us or the Republicans will pack the Court!” will be their battle cries.
And they’ll pull out all stops on the vote fraud front - a decisively Constitutionalist majority on the SCOTUS might be a disaster for them.
FReepmail me to subscribe to or unsubscribe from the SCOTUS ping list.
It will make no difference to the court’s make-up if Obama gets to replace that old bat. He’ll simply choose another lib-tard dirt-bag; and he’d be hard pressed to find someone who hates the U.S. Constitution more than does Ruth Bader Ginsberg.
Now, if he had a chance to replace Scalia or Thomas, THAT would be a disaster.
...no longer up for the job?
When was she EVER up for the job? She respects the constitutions of South Africa and the EU more than she does the one she is sworn to uphold.
Precisely why McConnell has to go!
He’d make a recess appointment. Even with the recent NLRB ruling, the Senate can’t, physically, stay in session forever.
If the recess appointment problem didn’t exist, the solution would be to filibuster the Ginsburg replacement until Scalia or Kennedy left. Then demand reciprocity: the President gets to select a nominee, and the GOP leadership gets to select a nominee. Both get voted on at the same time.
Yes, we’d have to trust that the GOP leadership would choose a Conservative for their selection. But it’s a better option than leaving it to Obama. And it fits within the boundaries of the “advise” part of “advise and consent”
As to whether the Republicans are too GOPe and therefore wouldn’t oppose Obama, I disagree. Things aren’t quite as dire as that. I think the party would stick together and oppose them... You might not think us conservatives have any impact; yet we do. To buck something so contentious as allowing Obama to nominate a political ideologue would be enormous ammunition for a potential TEA party primary challenger that probably keeps the more GOPe senators awake at night in a cold sweat.
In other words, the challenges, some successful, like Ted Cruz, some not, Like Bevins and McDainiels (and we haven’t reached the end of the road with him) scare the BLANK out of the GOPe and make them spend a whole heck of a lot of money they otherwise wouldn’t. So, things are not as DIRE as we make them out here.
Having said all that, the writer of this article really, really whitewashes the democrats corruption of nominees and tries to pin all the damage on Republicans, which is bullsh!t.
If you remember the arrogance of “I won” and “Get in the back seat” or “Eat your peas” you will see that most of the political discourse in this country today has been caused by the current White House pResident. Before that the anti-Bush contingent in the press and democrat party also piled it on. And Ted Kennedy’s attack on Bork was totally shameful. No, I do not think the Republicans have been the main cause of disunity, but rather the democrat desire to win at all costs and never cease campaigning, with the constant lapdog media yipping, twisting and lying for them as THE primary factor by a landslide.
Final thing. I am a Southerner, but I do not approve of any 2nd Confederacy, that is us Southerners seceding from the Union, but rather this time, let’s throw the Liberal states out of the Union! We’ll KEEP Old Glory, and let them fly their true banner, the Hammer and Sickle!!!
Agreed. With RINOs like McCain and Graham, filibusters will fail.
I suspect dingy harry did not go full nuclear on SCOTUS nominations is because even some in the dems, other than reid, have sense enough to know that would be a very dangerous precedent that would come back to haunt them with much greater impact when the GOP again gets the majority than their short-term goal of getting one Justice pushed through.
Reid’s semi-nuke Fed Judge pure majority rule change was a “stall tactic” tunnelvision move that did not consider that the public would turn against nobama.
A related question is — why are the liberals so eager to shove out the door, one of their very liberal judges such as Ginsburg?
We’ve heard variations of this story the past few years, that it’s time for Ginsburg to retire, so Obama can appoint a younger liberal, who will be on the court for decades to come.
I think the liberals fear that it will be hard for the Senate to confirm a replacement who is as liberal as Ginsburg. Remember Ginsburg’s background is that she was general counsel for the ACLU before she was a judge. You can’t get much more liberal than that. She’s been, in effect, the ACLU representative on the Supreme Court.
I don’t believe the conclusion. Republicans mostly believe that the Democrats are the natural Ruling Party and should get what they want as regards judges and Justices. They won’t be “breaking with their party” when they vote for a kenyan Justice.
It will make a difference in that a replacement for Ginsburg would ensure that the seat doesn’t come up for change for a few more decades. I kind of expect a retiring lefty on the Court to be replaced by a very young Lefty activist. And yes, the Republicans will approve anyone the kenyan comes up with.
I don’t think a Tea Party challenge is all that dire a prospect. A new conservative electee in Congress very quickly learns that his path to riches lies on the left. If he plays ball he will be a wealthy man even if he loses his next election. If he does not then his wealth will be limited to his salary and what he can garner from his own efforts. Thus a large portion of our brave brash conservative candidates become Washington Republicans and useless to the Republic within a very short time of being elected.
Tribe didn’t write the article, but he’s 72 and no one would consider appointing him or anyone else at that age. The idea is to find someone 50ish who will (hopefully) be around a long, long time.
Tribe, while liberal, has contributed a single positive thing to American jurisprudence.
He made the academic case for the 2nd Amendment being an individual right, which made it hard for the left to marginalize judges and scholars who take that view.
His influence on Justice Kennedy is widely known, and we sure needed his vote in Heller and McDonald.
That’s about all I will say about the guy.
all federal judicial nominations - why we need a GOP majority Congress for a generation. If we had 16 years of a GOP President, along with GOP control of the Congress, we’d be able to really shake up the federal bench.
I truly do hear what you’re saying and it IS a great disappointment to see that...
But still, not all of them do. And it is OUR job to keep electing them, and REPLACING those who go soft and of course replace all the RINOs.
Ted Cruz, Mike Lee, Jeff Sessions in the Senate...
In the House we have (From Wikipedia):
The TEA Party caucus chair was Michele Bachmann of Minnesota. Of a total possible 435 Representatives, as of January 6, 2013, the committee had 48 members, all Republicans.
Michele Bachmann of Minnesota, Chair
Joe Barton of Texas
Gus Bilirakis of Florida
Rob Bishop of Utah
Diane Black of Tennessee
Michael C. Burgess of Texas
Paul Broun of Georgia
John Carter of Texas
Bill Cassidy of Louisiana
Howard Coble of North Carolina
Mike Coffman of Colorado
Ander Crenshaw of Florida
John Culberson of Texas
Jeff Duncan of South Carolina
Blake Farenthold of Texas
Stephen Fincher of Tennessee
John Fleming of Louisiana
Trent Franks of Arizona
Phil Gingrey of Georgia
Louie Gohmert of Texas
Vicky Hartzler of Missouri
Tim Huelskamp of Kansas
Lynn Jenkins of Kansas
Steve King of Iowa
Doug Lamborn of Colorado
Blaine Luetkemeyer of Missouri
Cynthia Lummis of Wyoming
Kenny Marchant of Texas
Tom McClintock of California
David McKinley of West Virginia
Gary Miller of California
Mick Mulvaney of South Carolina
Randy Neugebauer of Texas
Rich Nugent of Florida
Steven Palazzo of Mississippi
Steve Pearce of New Mexico
Ted Poe of Texas
Tom Price of Georgia
Phil Roe of Tennessee
Dennis A. Ross of Florida
Ed Royce of California
Steve Scalise of Louisiana
David Schweikert of Arizona
Pete Sessions of Texas
Adrian Smith of Nebraska
Lamar S. Smith of Texas
Marlin Stutzman of Indiana
Tim Walberg of Michigan
Lynn Westmoreland of Georgia
Joe Wilson of South Carolina
I don’t think all of this list are TEA party though. Some of them may be RINOs, since I do not know of all of them. Pete Sessions of Texas is TEA? Not what I heard. I’m also disappointed in Bachmann; she hired Ed Rollins who went on to bash the remaining conservatives in the race thus giving us Romney, and then reneged on her promise to oppose Boehner for Sepaker. Also, I do not see Trey Gowdy of South Carolina here. Isn’t he TEA?
In any case, we need to WORK on making the list longer and better.
If the kenyan gets another appointment it would not surprise me to see an appointee in the 40 Y.O range, or less. History shows that young Conservative appointees often tend to become flaming leftists on the Court. Younger Libs just lean farther left. Watch the obamacare cases coming up. We may see that the kenyan doesn’t need another appointment. Roberts just might continue in the direction he showed the last time with obamacare.
We can hope Roberts doesn’t go with the libs on the Court but there’s not a thing in the world anyone can do about it. Those are lifetime appointments; there’s no higher aspiration for a judge than Chief Justice. He’s set for life, no matter what he does.
The Founding Fathers envisioned the judiciary as the weakest branch of government.
The legislature can remove areas of jurisdiction from the courts.
There are no defined reasons for removing a judge. There is no objection to simply removing a judge for having poor judgment.
The way he aboutfaced last time is a strong indication that he was turned by heavy pressure of the blackmail variety or naked threats to his family. I believe also that he takes Dilantin. That drug, over time, can destroy one’s willpower to the point that one cannot make a decision in the face of opposition.
Agree on parts a and b. BUT a judge can be impeached, just like any other official. (see Alcee Hastings) One can’t be removed because of the perception of “poor judgment,” unless the poor judgment is proven to be a result of being declared mentally incompetent.
Is he an epileptic? Seems that would long ago have interfered with what was a highly successful legal career, no? Why else would he take dilantin?
Yes. I meant removed by impeachment.
I figured we were on the same page!
I'm going to disagree, DC is the most conservative place in the country… if you're going with the definition of keeping things the way they are: they have no intention of battling corruption and altering the in-place power structures.
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