Assuming this ploy works. Obama can’t get any nominee past the senate; either they vote along party lines to block, or they don’t allow a vote in the first place. Now, fast forward, and a Republican wins the White House. Should Democrats block any nominee on ideological grounds that their president was the one who was Constitutionally supposed to be making the decision? Would we now live in a world with an ever decreasingly sized Supreme Court because no one can get any nominee past the Senate without a filibuster proof majority (and even then, requiring absolute party adherence)? Is there any non electoral remedy to this situation?
But it seems to me that it would be an issue if a candidate takes it to court claiming that the state certified the wrong electors and that Congress should not accept the result. Or suppose we have an apparent tie, Trump wins the House vote, and Clinton claims that we should not accept the electors in a given state for various reasons. We have the potential, albeit slim, for a huge constitutional crisis.
To be sure, almost any “found” ballots will have had a chain of custody failure along the way, almost by definition. If not, they would not have been “lost” in the first place. And as such shouldn’t be simply counted since they may have been tampered with, or even be fake ab initio. But the number of them should probably be counted and added to the error bars of the result.
I agree a better method is to rigorously define a margin of error and if the count is within the margin of error declare a tie & re-vote. And yes, run-offs in multi-way elections are another way to amplify the differences between the top two so counting fuzz doesn’t flip the result wrongly.
That idea (close count => tie => do-over) introduces the new, though much less likely to happen, problem. What to do when the count comes out *riiight *alongside the tie threshold? *Maaybe *a recount would move it solidly from just-barely-a-tie territory into A-barely-wins territory. Or vice versa. Or the same on the B side.
The bigger you make the tie band the less likely the almost-/barely-a-tie issue comes up. But the more likely you get a statistical dead heat. e.g. imagine the Prez was elected by total national popular vote and the tie margin was set at 8%. i.e. anything less lopsided than 54/46 was a no-decision and a do-over. (After skipping spoiled and minor-candidate votes of course).
We’d have a lot more no-decisions in our history and in the modern era we might never be able to get a President selected at all. Lends a whole new meaning to the permanent campaign, doesn’t it? :eek:
Sure, but they can only do that by amending the Judiciary Act, so Obama would veto.
Based on the behavior pattern of the Republicans in Congress as of late, they’ll get into serious fights with themselves after the 2nd or 3rd nominee is obstructed, especially if Obama serves up a moderate and the polls are showing the Republican Prez nominee looking a lot like a hellbound snowball; the same folks who didn’t want to shut the government down won’t want to have the party continue to look obstructionist especially when they’ll just end up with a more liberal nominee under the new Democratic Prez, but the fire-eater zealous types will have enough members in line to keep anything from moving forward, and they’ll end up appearing to be in disarray; Obama will help make the Democrats look like reasonable folks who were willing to compromise a little; then President Clinton will nominate someone who won’t be nearly as liberal as lots of folks were salivating for, the Republicans will still balk but it will eventually go through and the bench will be a more liberal SC bench than it has been.
I don’t agree that statements by the Speaker of the House bear more (or even equivalent) weight than statements by a sitting member of the Senate Judiciary committee when it comes to judicial appointments.
Schumer was a party leader, but more importantly, was in the majority on the Senate Judiciary Committee when he made his remarks. He had the means to carry out his promises. The Speaker of the House only has his bully pulpit when it comes to judicial confirmations.
I think both sides *should *grow up and realize they are not going to get their ideal candidate.
The Republicans have to accept that Obama will never nominate a Scalia clone.
The Democrats have to accept that even a right-down-the-middle, politically agnostic judge (does such exist?!?) would be a substantial improvement over Scalia. This Senate isn’t going to approve a hard left jurist to replace Scalia.
The Republicans instead seem to be choosing to delay, hoping for a Republican in the White House. But Scalia died in mid-February. Obama is President now and a nominee can be vetted and voted on in the normal course of business. If it was the morning of January 20, 2017 that Scalia didn’t wake up then the whole matter would be different.
Anyway, I rather like the idea of more than one so-called swing justice on the high court.
It is a matter for a state court.
Any appeal to the Supreme Court that ends in a tie vote upholds the lower court decision without setting precedent.
This is not a constitutional crisis. It would result in an outcome that would outrage many on the losing side, but so did Bush v Gore and our Constitution survived intact.
A non-chairman member of the Judiciary Committee has no means to carry out such a threat, other than voting no on a nomination. Why do you think being a member of the Judiciary Committee gives him “the means to carry out his promises?”
I’m not speaking of only judicial appointments. I’m saying that we should listen more to people who are in charge of things as opposed to people who sit on the sidelines to cheer or throw bombs.
To use another, more extreme and hopefully clearer example, when Obama talks about immigration policy we should listen. When Congressman Steve “They have calves the size of cantaloupes” King says things about immigration policy, we can usually ignore him, even if King does sit on the House Judiciary Committee that has jurisdiction over such matters.
If Democrats take control of the Senate in November, could Obama perhaps get a nominee through between the swearing-in of the new Congress and him leaving office on Jan. 20?
If Obama nominates someone on January 3 (or thereabouts) when the new Congress is seated, sure the Senate could vote on it before January 20. But even if Dems take control of the Senate, they’d still have to deal with a Republican filibuster.
I presume the filibuster would be used to block it, though Democrats could change the rules if in majority.
Actually, just thought of something. Let’s say a Democratic Senate is sworn in on January 3, 2017 (or whatever that date is). They immediately adjourn. Obama recess appoints the biggest lefty you can imagine. That lefty justice could sit on the Supreme Court until roughly December 2018.
Yeah, this ain’t gonna happen.
The fact that Sri Srinivasan was confirmed 97-0 means nothing. I doubt that they will even bother to hold hearings. McConnell proposed rationale for not voting on a candidate has nothing to do with any particular individual candidate but only with the timing. This argument holds as much water no matter who the candidate is, going so far as to consider any candidate (even one who might be to their liking) as a possibility would invalidate this argument.
I agree. Hopefully I’m just being overly cynical but I also doubt they will suffer politically. Those on the left will disgree with this action but they wouldn’t vote for them in any case. Those on the right will applaud the action as resistance against unconsitutional court packing of a illegitimate president with one foot out the door who is once again trying to trample democracy. As for those in the middle, partisanship has become to entrenced that it now just to be expected as part of politics as usual. The average voter doesn’t have enough of a grasp of history or civics to realize that this represents a new low, and will instead just see this as another example where the two parties disagree, with no more consequence than say the disagreement about the proper tax rate. This view will be reenforced by the “liberal” media which equates presenting false equivalences with being non-partisan. So the voters will be left with the impression that both sides are being equally unreasonable.
I think they’ll try, either by rejecting a few before confirming or holding one guy’s confirmation up for a long time. But eventually they’ll cave, they have to, it would be sooo bad for them
Because it’s IMPOSSIBLE that the Republicans could or would run out the clock on a more moderate nominee, right?
They’ve used the nuclear option before, and could easily do so again, given the stakes.
A lame duck, politically-speaking, is an elected official near the end of their term.
You seem to forget that Hillary, Bernie, and Bill will want to make a decision on who to nominate for the SCOTUS. My guess is that the leading Democrats, and their financial backers, are currently creating a long list of potential nominees. That should be whittled down to a short list, and finally a single name will emerge.
I can understand that the Republicans and Tea Party don’t believe that Obama can force his nominee thru the U.S. Senate. I can understand that independents might believe that Obama can’t force his nominee thru the Senate. What I find most interesting is the lack of faith by Democrats that Obama can force his nominee thru the Senate.
Democrats don’t even know who Obama is going to nominate but they’re pretty sure Obama can’t get the job done. The only thing Democrats can agree on is that it’s never Obama’s fault.
It wouldn’t go directly to the Supreme Court. There are a few areas where the Supreme Court has ‘original jurisdiction,’ that is, it hears a case without a lower court hearing it first - but this wouldn’t be one of them.
In a case like this, either the case would have originated in a state court or a U.S. District Court. In the latter case, while the option is available to request a direct review by the Supreme Court, bypassing the Circuit Court level, it almost surely wouldn’t be done in such a case, because a 4-4 tie at the Supreme Court would leave intact the ruling of the lower court. And it would be pretty disastrous if the lower court was a District Court rather than a Circuit Court of Appeals. (Or a state supreme court, in the first option.)
Let’s make it even more interesting: Trump wins the election by a whisker, but the new Senate is divided 50-50*. For the 17 days between the morning of January 3 and noon on January 20, the Dems control the White House and the Senate, but at noon on January 20, they lose both.
On January 3, 2017, the Dems try to hold a vote confirming Sri Srinivasan, who Obama nominated in March 2016, but the GOP filibusters the nomination. The Dems take the Senate into recess, and Obama withdraws Srinivasan’s nomination, and recess appoints Anita Hill, who is on the court through the end of 2018. 
*This part has happened before, in 2000.
I think we Demcrats simply realize that Senate Republicans are the world’s leading experts at getting nothing done. Why should anyone have reason to doubt their competence at incompetence?