# re: SCOTUS Nomination, what is Obama's long game? **URL:** \ **Category:** Politics & Elections\ **Created:** [March 17, 2016, 8:06am UTC](https://boards.straightdope.com/t/re-scotus-nomination-what-is-obamas-long-game/749240 "2016-03-17T08:06:00Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Knorf](https://avatars.discourse-cdn.com/v4/letter/k/58956e/32.png) [@Knorf](https://boards.straightdope.com/u/Knorf)\ **Post date:** [March 17, 2016, 7:01pm UTC](https://boards.straightdope.com/t/re-scotus-nomination-what-is-obamas-long-game/749240/21 "2016-03-17T19:01:40Z")
> [@Fiveyearlurker](#): > > If it’s not too much of a hijack, what the hell is the GOP long game here? Sure, this is fair game as well. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [March 17, 2016, 7:18pm UTC](https://boards.straightdope.com/t/re-scotus-nomination-what-is-obamas-long-game/749240/22 "2016-03-17T19:18:21Z")
I don’t think the President is playing a “game” here, so much as he’s smartly hedged his bets. Garland is liberal in all the ways Obama cares about, so if the Senate blinks then Garland on the court is a happy outcome for him, whereas if he’s picked some of the other choices he’d be less certain. The President doesn’t actually know what’s going to happen for sure(betting markets see a confirmation as close to 50-50), so sending up someone more conservative to show that he’s the reasonable guy would likely have backfired on him. Garland is moderate enough that Republicans can’t plausibly block him, but liberal enough that he tilts the balance of the court on all but criminal justice issues. ---
**Author:** ![BobLibDem](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/boblibdem/32/3149_2.png) [@BobLibDem](https://boards.straightdope.com/u/BobLibDem)\ **Post date:** [March 17, 2016, 7:19pm UTC](https://boards.straightdope.com/t/re-scotus-nomination-what-is-obamas-long-game/749240/23 "2016-03-17T19:19:13Z")
> [@Fiveyearlurker](#): > > If it’s not too much of a hijack, what the hell is the GOP long game here? As far as I can tell, the long game is to keep the base happy until the election by opposing everything Obama proposes. They must have figured out they’d rather keep the anti-Obama faction placated than try to expand their tent by being more accommodating to Obama. I don’t think it’s the right decision for them, but I’m happy they’re making it. ---
**Author:** ![running\_coach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/running_coach/32/15836_2.png) [@running\_coach](https://boards.straightdope.com/u/running_coach)\ **Post date:** [March 17, 2016, 7:25pm UTC](https://boards.straightdope.com/t/re-scotus-nomination-what-is-obamas-long-game/749240/24 "2016-03-17T19:25:19Z")
> [@adaher](#): > > Garland is moderate enough that Republicans can’t plausibly block him, but liberal enough that he tilts the balance of the court on all but criminal justice issues. Rubio said he was completely unacceptable. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [March 17, 2016, 7:28pm UTC](https://boards.straightdope.com/t/re-scotus-nomination-what-is-obamas-long-game/749240/25 "2016-03-17T19:28:46Z")
Ideologically, I agree, I just don’t think it’s acceptable to block candidates based on ideology if they are as well qualified as Garland is. I can feel free to grumble about it, but Garland should be confirmed. ---
**Author:** ![Knorf](https://avatars.discourse-cdn.com/v4/letter/k/58956e/32.png) [@Knorf](https://boards.straightdope.com/u/Knorf)\ **Post date:** [March 17, 2016, 7:31pm UTC](https://boards.straightdope.com/t/re-scotus-nomination-what-is-obamas-long-game/749240/26 "2016-03-17T19:31:46Z")
> [@adaher](#): > > Ideologically, I agree, I just don’t think it’s acceptable to block candidates based on ideology if they are as well qualified as Garland is. I can feel free to grumble about it, but Garland should be confirmed. How very reasonable of you! I quite agree. Although there’s a lot of wiggle room in the term “qualified,” isn’t there? Nonetheless, it’s hard to imagine anyone rational saying Garland is unqualified. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [March 17, 2016, 7:33pm UTC](https://boards.straightdope.com/t/re-scotus-nomination-what-is-obamas-long-game/749240/27 "2016-03-17T19:33:48Z")
Garland is probably the most qualified person ever to be nominated. Most of the time a person with few decisions gets sent up to the Senate. Garland’s got a history and tons of experience. The downside(for Dems) is that he’s a little old. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [March 17, 2016, 7:37pm UTC](https://boards.straightdope.com/t/re-scotus-nomination-what-is-obamas-long-game/749240/28 "2016-03-17T19:37:52Z")
> [@Fiveyearlurker](#): > > If it’s not too much of a hijack, what the hell is the GOP long game here? I’m sure they have none that extends past November, at any rate. They – and American conservatism in general – are just fighting a holding action, trying not to lose ground more than an inch at a time, even though they see no way in the long run to any Reagan-Revolution kind of victory. They probably would not even hold the House without some careful and brazen gerrymandering, and they hear the clock softly but ominously ticking towards the next census. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [March 17, 2016, 8:32pm UTC](https://boards.straightdope.com/t/re-scotus-nomination-what-is-obamas-long-game/749240/29 "2016-03-17T20:32:43Z")
> [@Lord\_Feldon](#): > > It’s very, very easy for the Senate to block a recess appointment. All the majority has to do is have a senator in town once every three days to tap the gavel (such as in [this session](http://www.c-span.org/video/?326225-1/us-senate-pro-forma-session) which lasted about 35 seconds). ACTUALLY if Obama had any balls he would send Biden over to preside. Any Dem Senator could then ask for a Call of the House. Remember it is illegal for a Senator to be absent unless excused by the presiding officer. Biden of course excuses all Democrats but no Republicans. Send Marshals to arrest them in their own homes if necessary and drag them handcuffed onto the chamber floor to answer the charge. Hey you don’t want to recess then you WILL be in the Chamber. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [March 17, 2016, 8:39pm UTC](https://boards.straightdope.com/t/re-scotus-nomination-what-is-obamas-long-game/749240/30 "2016-03-17T20:39:50Z")
To be pedantic, you actually need more Dems than Pubs to Call, but if it is a pro-forma session that should not be to difficult to pull off. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [March 17, 2016, 8:42pm UTC](https://boards.straightdope.com/t/re-scotus-nomination-what-is-obamas-long-game/749240/31 "2016-03-17T20:42:29Z")
> [@LSLGuy](#): > > Yes, Obama or Garland can withdraw Garland’s nomination at any time for any reason or no reason. If the nomination is still in progress when the new President is sworn in, the nomination is automatically cancelled at that moment. Garland’s nomination could of course be re-entered by the new Prez or that new Prez could pick somebody else. Actually, per the Senate rules, any pending nomination is returned without consent at the end of the session. So a pending nomination would become null and void on January 3, 2017 when the Senate ends one session and begins the new one. Pending nominations are not returned just because a new president takes office. But the new president could withdraw a nomination previously made by the prior president. There is nothing that would prohibit Obama from nominating Garland again to the new Senate. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [March 17, 2016, 8:44pm UTC](https://boards.straightdope.com/t/re-scotus-nomination-what-is-obamas-long-game/749240/32 "2016-03-17T20:44:12Z")
> [@Saint\_Cad](#): > > ACTUALLY if Obama had any balls he would send Biden over to preside. Any Dem Senator could then ask for a Call of the House. Remember it is illegal for a Senator to be absent unless excused by the presiding officer. Biden of course excuses all Democrats but no Republicans. Send Marshals to arrest them in their own homes if necessary and drag them handcuffed onto the chamber floor to answer the charge. Hey you don’t want to recess then you WILL be in the Chamber. The Vice President of the United States does serve as the president of the Senate. But that is a role without power to set the order of business. This scheme would not work. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [March 17, 2016, 8:52pm UTC](https://boards.straightdope.com/t/re-scotus-nomination-what-is-obamas-long-game/749240/33 "2016-03-17T20:52:05Z")
> [@Iggy](#): > > The Vice President of the United States does serve as the president of the Senate. But that is a role without power to set the order of business. This scheme would not work. Ummmm … yes it would. A Call of the House is not in the Order of Business, it is implied in Senate Rule 4(1) as part of the morning business which is NOT controlled by the majority leader and the procedure is Senate Rule 6. The Order of Business is in Rule 8 > [@](#): > > 1.\* At the conclusion of the morning business at the beginning of a new legislative day,\* unless upon motion the Senate shall at any time otherwise order, the Senate shall proceed to the consideration of the Calendar of Bills and Resolutions, ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [March 17, 2016, 8:55pm UTC](https://boards.straightdope.com/t/re-scotus-nomination-what-is-obamas-long-game/749240/34 "2016-03-17T20:55:21Z")
> [@Knorf](#): > > What about a recess appointment? What’s the Straight Dope on that? Obama cannot force a recess appointment. The Supreme Court unanimously decided in NLRB v Canning that the once every three days tap the gavel _pro forma_ sessions are legally sufficient to prevent a recess appointment. Per the Constitution, in order for the Senate to recess more than three days the House would have to consent. Which plays into a possible long game for the Republicans. I have speculated that having the Senate recess and allowing Obama to make a recess appointment might be the way out of gridlock for the Republicans. Any nominee so seated would be temporary, only in office until the end of the next Senate session. That would permit such a nominee to hear and vote on cases starting as early as October. Such a justice would not have a say in any opinions not released by the end of the Senate term on January 3. Very few opinions are released so quickly - usually just ones from non-controversial cases. The one wrinkle to this… it is not entirely clear if such nominee’s term would expire January 3, 2017 or January 3, 2019. The wording in the Constitution would likely be interpreted in light of NLRB v Canning and I \*think \*such nomination would expire January 3, 2017. Which would effectively kick the can down the road, putting off permanently filling the vacancy until after the election. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [March 17, 2016, 9:08pm UTC](https://boards.straightdope.com/t/re-scotus-nomination-what-is-obamas-long-game/749240/35 "2016-03-17T21:08:03Z")
> [@Saint\_Cad](#): > > Ummmm … yes it would. A Call of the House is not in the Order of Business, it is implied in Senate Rule 4(1) as part of the morning business which is NOT controlled by the majority leader and the procedure is Senate Rule 6. The Order of Business is in Rule 8 Straight from the [US Senate](http://www.senate.gov/artandhistory/history/common/briefing/President_Pro_Tempore.htm): > [@](#): > > The vice president is not at liberty to address the Senate, except by unanimous consent. The VP cannot just show up and take over. ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [March 17, 2016, 9:09pm UTC](https://boards.straightdope.com/t/re-scotus-nomination-what-is-obamas-long-game/749240/36 "2016-03-17T21:09:21Z")
> [@Fiveyearlurker](#): > > If it’s not too much of a hijack, what the hell is the GOP long game here? Originally to wait out the clock, hope for a GOP presidential victory in Nov. and then replace Saclia with a similar Justice. Of course, a Trump nomination looked less likely back when McConnell first declared they weren’t going to even consider an Obama nominee. Now a Hillary Presdiency looks more likely, and a Trump Presidency is at least plausible (who might nominate a Conservative, Liberal, or his horse to the bench, depending on how he feels that morning). So I’m not sure how much they’re now sticking with the original strategy, and how much is just that they want to have a last temper-tantrum about the fact that Obama is President before it’s too late. > [@Iggy](#): > > Obama cannot force a recess appointment. The Supreme Court unanimously decided in NLRB v Canning that the once every three days tap the gavel pro forma sessions are legally sufficient to prevent a recess appointment. Doesn’t the end of the old Congress automatically trigger a recess? Seems weird to say Congress is in session if it stops existing in January. ---
**Author:** ![Euphonious\_Polemic](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/euphonious_polemic/32/3002_2.png) [@Euphonious\_Polemic](https://boards.straightdope.com/u/Euphonious_Polemic)\ **Post date:** [March 17, 2016, 9:25pm UTC](https://boards.straightdope.com/t/re-scotus-nomination-what-is-obamas-long-game/749240/37 "2016-03-17T21:25:19Z")
> [@Fiveyearlurker](#): > > If it’s not too much of a hijack, what the hell is the GOP long game here? Have a do-over of the 2008 election, and then re-write the history books to completely eliminate Obama. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [March 17, 2016, 9:29pm UTC](https://boards.straightdope.com/t/re-scotus-nomination-what-is-obamas-long-game/749240/38 "2016-03-17T21:29:12Z")
> [@Simplicio](#): > > … > > Doesn’t the end of the old Congress automatically trigger a recess? Seems weird to say Congress is in session if it stops existing in January. Yes. The end of the Congress is simultaneous with the beginning of the next. No gap in between to make an appointment. ---
**Author:** ![Hari\_Seldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hari_seldon/32/5173_2.png) [@Hari\_Seldon](https://boards.straightdope.com/u/Hari_Seldon)\ **Post date:** [March 18, 2016, 12:41am UTC](https://boards.straightdope.com/t/re-scotus-nomination-what-is-obamas-long-game/749240/39 "2016-03-18T00:41:46Z")
And what happens if the next senate also refuses to even consider HRC’s appointment to the court. Sure they will drag out Bork, but there were long hearings on Bork and the full senate voted him down. Even if the Dems were to win back the senate (or tie it), they could filabuster till the cows came home (or till they jumped over the moon). ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [March 18, 2016, 1:10am UTC](https://boards.straightdope.com/t/re-scotus-nomination-what-is-obamas-long-game/749240/40 "2016-03-18T01:10:45Z")
> [@Hari\_Seldon](#): > > And what happens if the next senate also refuses to even consider HRC’s appointment to the court. Then the next Senate will refuse to consider HRC’s appointment to the court. And pay whatever political price that costs. [Previous page](https://boards.straightdope.com/t/re-scotus-nomination-what-is-obamas-long-game/749240.md?page=1) [Next page](https://boards.straightdope.com/t/re-scotus-nomination-what-is-obamas-long-game/749240.md?page=3)