I was just wondering, with a reportedly liberal president-elect, what will be the probable fate of his judicial nominees? I know when the Democrats were in the minority, they filibustered George W. Bush’s ultraconservative judicial nominees, until the “gang of 14” compromise put an end to this. What rules will then apply to Barack Obama’s judges? Will the gang-of-14 rules apply? And what for that matter will be both parties general reaction to Obama’s likely liberal appointees to judgeships?
Also, I took a political science class some years back at a local community college. And my very liberal teacher said if Supreme Ct. Justice Stevens resigns with a Democrat as president, he will probably replace him with someone just as liberal, to preserve the ideological balance of the court. Will Pres.-elect Obama do this, and will he be successful if he does?
Balance or no balance, Obama is likely to appoint left-leaning judges. That’s a given. Since there are going to be something like 42 Republicans in the Senate and the GOP seems to be licking its wounds at the moment, the odds of a filibuster aren’t that good. Half the Democrats voted for Roberts. Only a few (four) broke off to vote for Alito. There was no filibuster attempt for Roberts and such an effort for Alito was not successful even though the Democrats had 49 Senators (plus two independents). Miers was opposed successfully, but pretty much everyone agreed she was unqualified. So unless Obama nominates somebody who is seen as extremely liberal or unqualified, I’m not seeing that much risk for a filibuster.
It isn’t quite as simple as your professor made out, in my opinion. This is probably a biased viewpoint from me, but I think these days it is easier to find “ideological purity” for a conservative leaning judge then a liberal leaning one. Obama will find not only that judges tend to be wild cards (no one thought Kennedy would end up as being with the liberal wing on various gay rights cases, for example), but also that he will have to make compromises on certain issues, as the more liberal judges tend to be less predictable.
To a large extent, I think this is because textualism tends to be a more predictable philosophy (with full caveats here as to whether it is a philosophy in and of itself, or a convenient mask for underlying philosophies). Obama will, I think, find it easy to find justices who will vote the way he wants on abortion rights, for example, but may find on other issues important to him they vote in less predictable ways. Basing things on substantive due process can lead to some pretty unexpected results.
Fate? You make it sound as if something bad could happen.
Obama’s nominees will sail through without a problem. The Republicans don’t have anywhere near the numbers to make him sweat. Democratic Senators who used to talk about the need for consultation and collegiality will no longer see any such need.
I love it how the functional non-Scalia wing is now regarded as a left-wing block proper, despite many of them being Republican appointees, who’re incrementalist by nature and essentially conservative in rejecting the excesses of Warren Court. What courts as liberal now is a minimum degree of non-deference to sweeping claims of executive prerogative, a non-impoverished equity jurisprudential understanding, living constitutionalism of the gaps, and citing international jurisprudence in a non-controlling fashion. In other words, it is defined purely in reference to anything more moderate than the outlier of the Federalist Society’s views.
Republicans have had their picks for the last two decades, with nominal exceptions like Bork. If they want to fillibuster they better have solid reasons brought up through the nomination process.
Jeff Sessions who screamed about the right for a up or down vote will change his mind. He will think filibusters are suddenly a good idea. The dems will need 60 votes to get any one through. Driven by their so called religious convictions,they will feel compelled to fight every single judge the dems offer.
Well, as many of you are probably now aware, Republican Sen. Saxby Chambliss just won the run-off in Georgia, making a Democratic “supermajority” no longer possible. What does this mean now to my original question? And do any of you wish to take back what you said earlier, particularly that the Democrats will have no problem imposing their will, even without the Republicans’ consent?
BTW, I have a theory now: the Democrats will still be able to break filibusters, but they will do it with a couple of wayward Republican Senators. Or, they will have a new gang of 14 type deal. Sound plausible?
I would hope that any filibuster effort is reserved for a Harriet Miers-type of appointment, someone who simply lacks the objective reasonable qualifications to sit on the bench.
Elections have consequences. We’ve elected Barack Obama, and that means Brarack Obama gets to decide who to nominate to the high court. The Senate should not scuttle his choices merely because there’s ideological disagreement; getting to choose the ideology of justices is one of the perks of being in the Oval Office.
Interestingly, of the four SCOTUS members now considered to be on the liberal side, two of them…Stevens and Souter…were appointed by Republicans (Ford and Bush Sr. respectively), with the other two (Ginzberg and Breyer) being Clinton appointees. The one considered in the center, Kennedy, was also appointed by a Republican (Reagan no less). All four considered to be on the conservative side were appointed by Republicans (Scalia by Reagan, Thomas by Bush Sr, and Alito and Roberts by Bush Jr).
I think it says something about the leanings of the current court that three of the five most liberal members were appointed by Republicans! (Alternatively, I suppose one could argue that it says something about the Presidents that appointed them not holding to an ideological purity test…or guessing wrong on their ideology.)
Whether or not Franken wins, I’m standing by what I said. The Gang of 14 came to be in a Senate that was split down the middle, whereas this one is decisively Democratic. If Obama needs that kind of action to break a deadlock, he’s already screwed up- and I don’t think he’ll make that kind of mistake. I don’t think it will be that hard for Obama to get a few Republicans to split off. But all this depends on what kind of people he nominates, and that’s the big unknown. If it’s true that Ginsberg has health issues and considering Steven’s age, I guess we’ll find out sooner than later. I don’t know what other federal judgeships are already open.
No it isn’t. The President needs the consent of the Senate, if Obama chooses someone whose ideology is unacceptable to a large enough percentage of the senate that they can withhold that consent, they can and should do so.
That said, I agree with the above posters that Obama is probably savy enough to make sure he chooses candidates that will past muster with the conservative Senate Dems and at least a the one or two Senate Republicans needed to bring it to the floor, and thus it won’t be a big issue, at least with the current make up of Congress.
I agree. The confirmation process is intended to provide against a blatantly unqualified nominee, not impose a litmus test of ideology.
From a practical point of view, the GoP is on the ropes at the moment. If they were a football team, the coming administration would be refered to as a “rebuilding year”. They need to pick their fights very carefully. Start off by filibustering a couple of left leaning moderate judicial nominees that are otherwise qualified, and they’ll just be digging themselves in deeper.
For all the talk that a 60-seat supermajority got, it was never really a magic number. You’d be hard pressed to find any Senate vote that came down to pure party lines: There’s almost always a few Republicans who vote on the “Democrat” side, or Democrats who vote on the “Republican” side, or both, on any given issue. One or two seats isn’t that big a deal.