I’d bet that will depend entirely on how the nomination is going so far.
If the R senate has simply not deigned to even take notice of the nomination and no hearings have been held, etc., then the nominee is still in the starting gate & would probably simply be renominated.
If it turns out the nominee ended up poorly received in the court of public opinion, roundly savaged by the RW propaganda machine, and has stumbled badly in hearings to date, it’ll be real easy for the new Prez to declare a timeout while they work on selecting different candidate.
It’s a bit like a declinable penalty in football. The other team gets the choice of a do-over or accept the results of the play so far. The new Prez will have the option of a do-over, or to stand pat.
There’s also the issue that Obama may try a relative compromise candidate; one who’s mostly centrist and looks lefty only to the wildest of wild-eyed righties. So then Bernie gets elected and his coattails include a solidly D senate. Suddenly the realm of the possible extends a lot further left than it did and perhaps Bernie pulls Obama’s nominee for his own truly left lefty.
Cruz has already said he will fillibuster any Obama nominee, isn’t that pretty much end of the discussion right there? it’s not like the GOP leadership can influence him at all.
It’ll be fascinating to see how badly this backfires on them. McConnell claims that the American people must have a voice in the selection. Yes, they must, and the way it works is, they elect a president, as they did in 2012, who is then given four years to perform his prescribed duties. McConnell’s hypocrisy is palpable.
The only reason they’re playing this game is because they can. If it was near the beginning of Obama’s term, there would be procedurally no way to stall for three or four years. If there was, they’d have done that, too. Welfare of the nation? Who cares! Better to have no Court at all than risk having a centrist or liberal-leaning one!
The same Ted Cruz who filibustered the budget until Obamacare was repealed?
Sure, he succeeded for like two weeks, two years ago. But today the government and Obamacare are open for business, so not everything Ted Cruz says, happens.
Well that is the point of how this is lose lose for them, assuming Obama nominates a fairly moderate, previously well supported, well qualified candidate, who would under other circumstances have been approved without too much to do.
The hard nut wing will view anything but blocking anyone Obama proposes as weakness; the vast middle will view it similarly to shutting down the government. Succeed in blocking a very well qualified fairly moderate candidate and and you hurt some winnable Senate races down ticket and maybe even House one, and hurt the case in a general. If their Presidential candidate somehow wins then payback is fair game and the first year or two of the administration is consumed with fights over nominees. If the Democratic nominee wins the odds are likely that a new nominee will be if anything a bit more to the liberal side. There is really no upside. Least poor is to be responsible and approve a well qualified not extreme nominee.
I’m not sure there is a “vast middle”. Or if there is, I think its largely people that just don’t pay attention to politics, rather than people committed to a particular vision of gov’t. I suspect such people won’t be particularly interested in a SCOTUS fight.
The gov’t shutdown fights went poorly for the GOP not because of any sort of centerist revolt, but because even a lot of hard right-wingers realized the potential real-world consequences might be severe. The editorial board of the WSJ, for example, had a bunch of articles urging the GOP to fold.
The SCOTUS fight isn’t really like that. Having an eight person court is poor for governance, since its likely to produce a lot 4-4 rulings that won’t set a precedant and thus increase uncertainty. But its a relatively minor and subtle issue compared to how a debt crisis might’ve played out.
People keep talking about the Republicans being punished for obstructionism, but that never happened. They were electorally rewarded for their efforts. Why would their fortunes reverse this time?
I expect them to obstruct for a good long time. Long enough to look like they are legitimately standing up to Obama. But then to they’ll have to cave.
This will take them much closer to the election. And they can cry loudly about how this new court packed with liberals is what you get with a Democratic president. Sound the alarm! We need a Republican president to get the court back on track. Get out there and vote!
At a Presidential level obstructionism is not usually rewarded.
Perhaps most importantly at the presidential level, a focus on the need to roll back Court rulings on gay and woman’s rights and such plays very well in many small Congressional districts and is red meat to a segment of the GOP leaning base, but fear of rolling back the clock decades on social progress will motivate Democratic base turnout even more and lose the middle for them even more. Keep that fear front and center, as it rightly belongs, and advantage to the Democratic nominee.
A fight defending the nomination of a moderate and well qualified candidate (who would otherwise be easily approved) against a disliked and perceived as dysfunctional Congress plays to increase Presidential approval rating. Every small increase there helps both Senate races and the chances of his Democratic successor.
Given the extremity of the Right that demands obstructing a candidate who otherwise would be confirmed easily, the WSJ is more part of the vast middle than of the Right. This is Right on a culture war axis not an economic one. It’s Christian God as part of the essence of America, one man one woman marriage, so-called “family values” … the WSJ’s conservatism is not on that axis. They care about getting business done.
Hmm… if that’s the status at the time of the election and the nominee has not requested the nomination be retired… you think that if the winner were the Bernster, on the first business day after the election the Senators would try to rush in and confirm the Obama nominee before he can withdraw?
I vote no Obama nominee will be confirmed; but there’s an outside possibility that a large enough groundswell of popular anger could force the Senate’s hand. But SCOTUS is a strange thing, before Roe v. Wade people cared about it (in the public) a lot less (well, a lot of ordinary Americans went insane over the Dred Scott ruling as well), and the last time I believe a SCOTUS justice left and his replacement couldn’t be squared away until the current President’s term in office ended was during the 60s before Roe. But in that case the justice was just retiring, and remained in office until a successor was found, leaving a spot on the bench truly vacant for what would likely be over a year would be unprecedented. I say over a year because most likely if no vote comes to the floor on Obama’s nominee, it’s likely that even a Democratic Senate with a Democratic President in January 2017 is going to want to review the new President’s nominee and the new President may want someone different from whom Obama proposes (someone more liberal for example, as Obama is likely to nominate a left-leaning moderate to try and force the Senate’s hand.)
In the best of times, without deliberate delay/malice being involved, it usually takes three months to fully vet and confirm a new SCOTUS justice.
Of course there’s always the chance that a Democratic Senate starting its term on 1/3/2017 confirms President Obama’s nominee before 1/20/2017 (when Obama’s term ends), but I’m not sure if that would happen. Even the new Democratic Senate at that late date might want to defer to the President-Elect versus a (then truly) lame duck President without any power or political influence left.
There is little chance of the Democrats achieving a filibuster-proof majority in the Senate. So it’s somewhat doubtful they could accomplish confirm a nomination before Obama leaves office.
Currently the Republicans hold 54 seats, with Democrats holding 44 and 2 Independents that side with the Democrats.
While the Republicans are defending 24 seats in the Senate, they would have to lose 14 of those with the Dem/Ind’s holding all of their seats to gain 60. And then they would have to hold all of their newly seated Senators in line to invoke cloture.
And if a new Senate did have 60 left leaning seats it is unimaginable that they would be serving alongside an incoming Republican president. So why rush? Just wait for Jan 20 then.
I actually don’t think the filibuster matters–I think you’re going to see that get nuked within the next 24 months, during the first term of the next President. It’s already been semi-nuked–being removed from Senate rules for judicial branch nominees (except SCOTUS) and executive branch offices, back in 2013. Of course since the Republicans took the Senate in the 2014 elections that doesn’t matter right now since it’s not filibustering that is keeping Obama appointees from being confirmed, but McConnell refusing to allow most of them to even reach the floor for a straight up/down vote.
But if Hillary wins she almost certainly will bring a Democratic Senate with her, and I don’t believe they’ll allow any more filibustering on anything substantive. It’s been coming for a long time, and the current level of acrimony in Washington means the negatives of nuking the filibuster completely are largely already realized anyway. If Cruz or Trump win and keep the Senate Republican, you can bet your money they aren’t going to let Dems filibuster the next Scalia to fill this vacant spot.
So back to a scenario where the Democrats win the White House/Senate, I think whether or not they decide to confirm Obama’s nominee in the 1/3-1/20 period won’t be determined by the filibuster.
Sitting president? No, he was a Senator at the time.
Oh, and the last President who had previously served on the Senate during a Supreme Court confirmation hearing? That would be LBJ, in the Senate during the Eisenhower administration. At that time there was no such thing as a ‘vote to filibuster’, you actually had to get up and talk… though if you did so it took 67 votes to get cloture.
(The only president who was a former Senator between Obama and LBJ was Nixon, but no Supreme Court vacancies opened up during his two years as a Senator.)
