Let’s picture a not that unrealistic outcome for the election. Clinton wins the presidency, but the Republicans keep the senate 52-48 or 51-49. McConnell follows Trump’s lead in somehow suggesting the results of the election were rigged or in some way illegitimate. He says that due to the results being illegitimate (or maybe he cooks up some other excuse) that he will not hold hearings on anyone Clinton nominates to the SCOTUS. How do you all think such a scenario would play out? Is this outcome at all likely, or am I just dreaming up an unrealistic nightmare scenario?
Assuming the Senate doesn’t recess long enough for Clinton to make a recess appointment, there’s nothing she would be able to do.
It does seem unrealistic, especially given that Thomas could retire at any point and make the court 4-2-1 Liberal-Conservative-Swing (according to the popular view of the justices).
The concern I have with banking on Thomas retiring is that yes, maybe he will retire, but Ginsburg isn’t exactly the picture of good health.
No argument there. Although 3-2-1 isn’t hot for the Republicans either. Then again Breyer is also pretty old. But so is Kennedy.
Long story short, there’s a lot of old people on the court.
I think that voters would grow weary of it and push the GOP to accept the nominee. If the GOP line is let’s let the people decide and then we have an election in which Clinton is the landslide president-elect, then what else do republicans have to fall back on? I also think that if she plays her cards right, Clinton can scold the republicans to work with her if they become obstinate the way they were with Obama. It’s getting to the point of put-up or shut-up for republicans.
Typically mid-terms favor the opposition party, but having already earned the reputation of being the worst congress in the history of congress, voters might turn that trend on its head. The worst of all scenarios could happen: they could actually make a president Hillary Clinton look like a fixer, like a good president instead of the evil witch they want to portray her as.
They’ve pretty much accomplished this with Obama, who not even a few years ago had abysmal approval ratings (not his fault, fwiw). But now he looks like FDR on some days. And it’s the fault of republican obstructionism.
I don’t see how they could even begin to justify it, given their rhetoric on why they can’t act on Obama’s nominee. If Ginsberg and Thomas retire, the Supreme Court would be down 3 justices and Hillary could pillory the Republicans for ‘decimating’ one of the three branches of Government. I just don’t see how they do it. Maybe use their majority to try and get ‘moderate’ justices appointed, but blocking for the sake of blocking…I think it would backfire badly.
IMHO as always. YMMV.
Supreme Court Highlander! Roberts vs. Sotomayor! There can be only one!
There are sure to be vacancies in the next four/eight years.
Didn’t they figure out a loophole to avoid recess appointments, where one senator shows up and bangs the gavel? If the GOP has the audacity to stall SCOTUS appointments until the 2020 election, I can see them abusing the loophole as well.
Nothing the GOP does surprises me anymore. Still, I think it’s more likely that they rush to confirm Garland, and then go back to trying to shoot down any future nominees that Hillary makes. But if they did decide to delay until 2020, and the recess loophole works, then I don’t think there’s anything that could be done aside from shaming them in the court of public opinion and hoping they lose their majority in the 2018 midterms.
If the Dems gain a very small majority on the Senate (say one or two) could they use that majority to force an adjournment for a month, clearing the way for a recess appointment? Or can even a motion to adjourn be filibustered?
That is exactly what the Senate has been doing lately.
The voters seem to be reacting to Trump, not the Senate refusing to hold hearings. I’m not sure the short term minded electorate will really notice if the GOP continues to stonewall for the next two years. I hope I’m wrong about both the electorate and the GOP. It would be interesting to see if they try to filibuster if the Senate goes Dem.
The first filibuster of a Supreme Court nominee will be the last one - the Senate already got rid of the filibuster for lower federal court appointments, and will do the same in the event that Ted Cruz (and it would be him, no doubt) tried to filibuster an appointment.
If Republicans continue to have a majority in the Senate, my prediction is that they will simply refuse to consider any Supreme Court nominees from Clinton as long as they have the majority. This is a sad state of affairs, but it makes plenty of sense from an individual perspective - a Republican senator voting to confirm such a nominee is guaranteed to be annihilated by a primary challenger (egged on by Ted Cruz again, meaning they can’t just all coordinate to confirm); stalling the nominee at least as of now doesn’t guarantee a loss in the general election. If that changed, we’d probably see some movement, since politicians work to incentive just like everyone else.
I know that some of the Senate races (particularly in Iowa and New Hampshire) are featuring heavy attacks by the Democratic challengers against the stalling of Judge Garland. We’ll see if that really moves the electorate. It really seems like most voters just don’t pay too much attention or care about this particular issue, important as it is.
It’s not a loophole, it’s the Constitution.
I think she simply asks the Supremes for a ruling on “advise and consent” - if Congress refuses to do the “advise and consent” job, can she simply appoint after a period of time? And I suspect the Supremes will say yes - if Congress won’t, she must.
Which will put a timer on Presidential appointments requiring advise and consent and break some of the ongoing gridlock outside of the Court as well, including lower courts.
The time may indeed come when SCOTUS will finally weigh in and say, in essence, that gridlock has gone on long enough and that the Senate must take action on the President’s nominees. (I was never a fan of the 2014 Canning recess-appointment decision myself - the Senate is using a parliamentary sham in order to deprive the President of a power explicitly given him by the Constitution - and I would say that even if it were a Democratic Senate and a Republican President).
Y’know, I’ve been thinking that for the past seven years or so, and they keep proving me wrong.
If Hillary wins in a landslide and Democrats take the Senate, look for speedy confirmation of Garland unless Obama withdraws the nomination. It’s the possibility of a narrow win and a Republican Senate that could be dicey. I would not put it past Republicans to abandon all pretext of decency and just flat out refuse to consider any Obama or Clinton appointee. In that case, then I think a constitutional amendment should be pursued whereby unless the full Senate votes to reject in a specified time frame, then the appointment is confirmed.
I don’t think it will come to this, cooler heads will prevail. However, if Republicans retake the Senate in 2018 then look for them to refuse any new openings in the final two years of Hillary’s first term.
A constitutional amendment may not even be required. If the Republicans had a majority in the Senate, they could still block a constitutional amendment anyway. As Dangerosa mentioned upthread, the SCOTUS could possibly be asked to render a decision on the meaning of “advise and consent.” Am I correct in thinking that this would require the Department of Justice to file a lawsuit against the Senate? Or is there a more direct route?
Yes and no. The Constitution says the President can make recess appointments. * The Supreme Court *says a “three day recess is too short to count.” And that during pro forma sessions where nothing happens, the Senate is not in recess. You could fairly call that a loophole, I think.
Exactly the opposite. The opinion states in clear language that the Constitution does not give good guidance for this issue, and that the Court was relying on the ad hoc accommodations that had emerged over the past 150 years. Recess appointments were perfectly valid but only if the Senate was in recess for ten or more days. Three days was too short. Extenuating circumstances could allow appointments in recesses between three and ten days.
But if the Senate says it is in session during a pro forma session, then it’s not in recess. That’s not anywhere in the Constitution, it’s a matter of Senate rules that the Court will honor.
What is exactly is the process by which a Justice is appointed? I mean after the Senate approves them. Does the President just sign a piece of paper and they show up to court?