The Last-Minute Options
Because the death of Supreme Court Justice Scalia is such a monumental political event, I'm going to spend a second day speculating about how the nomination process is going to play out. In specific, there are two last-minute options that might get a lot of scrutiny in the coming months.
I'm assuming for the sake of conversation that President Barack Obama will make his third Supreme Court nomination within a few weeks and also that the Senate will slow-walk it to death in one fashion or another, right up to November's election. At this juncture, that all seems like a pretty safe bet. However, what happens during Obama's lame-duck period could get mighty interesting.
There are two sets of two ways the election could go, resulting in four scenarios. The Democratic nominee could win the presidential election, or it could go to the Republican. The Senate could shift to Democratic control, or it could stay in the hands of Republican Mitch McConnell. Now, one of the four resulting combinations would obviously mean no action taken on Obama's Supreme Court nominee. If the GOP holds onto the Senate and wins the presidential race -- again, obviously -- nothing would happen because they'd wait for the new president to make a conservative pick. The other three scenarios (Democratic Senate, Democratic president; Democratic Senate, Republican president; and Republican Senate, Democratic president) are a little more interesting, but before we get to them we've got to explore the two last-minute options to understand the choices that could get made.
There are two phases to the lame-duck presidential period. The first is the lame-duck period in Congress. This happens after the election, right up to the end of the calendar year. Both the Senate and the presidency still remain in the same hands, no matter what the election results are. But after this period there is a crucial 17-day overlap dictated by the Constitution itself. The new Congress (including the new Senate) gets sworn in on January 3rd. But the new president doesn't get sworn in until January 20th, leaving 17 days with Obama still in office with a new Senate.
The Republicans in the Senate might just begin to see an Obama high-court nominee differently, depending on who wins what in the election. "President-Elect Bernie Sanders," for instance, might make an Obama pick a whole lot more palatable, in other words. So it is conceivable that the outgoing lame-duck Senate moves quickly right after the election to confirm Obama's nominee. The other option is even more plausible, although it'd take some dedication on the part of the incoming Democratic Senate. What normally happens is that they're all sworn in on the third of January, and then they take the first of many long vacations -- they normally don't get much of anything done until Inauguration Day. Next year might be different, though, if they have only a 17-day window in which to act.
Let's go back to the three scenarios, and examine each one. If a Republican won the presidency but the Democrats somehow managed to take back the Senate (this is kind of a longshot, since winning control of the Senate would be a lot more plausible if the Democrat wins the presidency), then the 17-day option may actually happen. The Senate would be sworn in, and then immediately approve a rules change to get rid of the filibuster for Supreme Court nominees. This is a necessary step, since Harry Reid excluded Supreme Court justices from his "nuclear option" -- while all other judges now get an up-or-down majority vote, the Supreme Court was excluded from the new rule. Obviously, that'd have to change. They could do so easily, because one of the first things the incoming Senate does is to vote on the rules they'll be using for the next two years. A quick change to those rules would happen, and the Supreme Court justice filibuster would disappear like the morning dew. The Democrats would then have to hustle the nominee through the judicial committee and quickly move the nomination to the Senate floor. A party-line vote would follow, and the new justice would be sworn in before the new president is inaugurated. The Republicans would naturally howl, but they could not stop this process (the Democrats would answer back with "the people have spoken and given us a Democratic Senate," no doubt).
The other two scenarios both involve the Democrat winning the presidential race. Now, it might just matter who that Democrat is, although it also might not. The prospect of a Hillary Clinton nomination is likely just about as abhorrent to Republicans as a Bernie Sanders nomination would be, to put this another way. If the Republicans held onto the Senate while the Democrats held onto the White House, then they'd have three choices to make -- approve Obama's choice (likely in the lame-duck period), wait and see who Hillary or Bernie appoints and then approve them, or go full-on obstructionist and refuse to appoint both Obama's choice and the incoming president's choice. This last one is rather frightening, because it could set up a prolonged period of only eight sitting justices on the high court. If Republicans just vowed to obstruct any and all Democratic nominees, then the term "gridlock" would get amped up to new levels. But if Obama nominates someone fairly mainstream (defined here as: "someone Senate Republicans already overwhelmingly voted to confirm to another post"), then the Republicans in the Senate might decide it'd be a lot easier for them politically to approve Obama's nominee rather than dragging the fight out forever with the new president. The basic Republican argument that "the people should weigh in on the Supreme Court nomination" would be moot, if the people had just elected a Democratic president. This is why, in this scenario, a lame-duck confirmation would be the most likely outcome.
The last of our scenarios is the best one for Democrats. If they win both the presidency and a bunch of down-ticket races, they could flip the Senate back to Democratic control. It would only take winning four seats to accomplish this, so this is a real possibility if a Democrat wins the White House. With an incoming president and an incoming Senate in Democratic control, though, there wouldn't be as much pressure for the Democrats to act. The choice would essentially boil down to giving President Obama his nominee as an outgoing notch on his legacy belt, or giving Hillary Clinton or Bernie Sanders their pick to begin their presidential legacy. In either case, the Senate might have to jettison the filibuster for Supreme Court picks, but if the incoming senators let Obama's nominee lapse then they'd have more time (and less pressure) to examine the nominee.
There would really be nothing for the Democrats to gain either by hustling Obama's pick through or waiting for the new president. In both cases, a justice more liberal than Scalia will shift the balance of power on the bench. The only real question -- and the only thing that might cause the Senate to act in the 17-day window -- is how liberal the new justice will be. If Obama picks a moderate (in the hopes of convincing Republicans to approve his pick), then waiting would mean the new president could pick a more-liberal nominee. However, this is a double-edged sword. If the incoming Senate is out of sync with the incoming president, they may want to get Obama's pick through and deny the choice to the new president. This scenario is much more likely if Sanders wins, for obvious reasons. A Sanders pick would likely be a lot more liberal than either the Obama nominee or whomever Clinton would choose.
If Clinton wins the presidency, it'd be nothing more than a coin-toss, whether the Senate would act quickly or slowly. Ideologically the nominees might be pretty close, to put it another way. In fact, I could even see President Hillary choosing the same person as Obama had nominated -- out of respect for the outgoing president. President Bernie, however, might be another story. If the incoming Senate was fearful of who Bernie might appoint, they might just decide the 17-day option is their best bet. They would fall all over themselves to deny that they were denying Sanders a pick -- they'd frame it instead as confirming President Obama's final choice. If Democrats do sweep the election and win the Senate and the White House, though, this is really the only way the Senate would use that 17-day window. Other than being scared of a Sanders nomination, it'd be seen as a win-win situation for Democrats, so they likely wouldn't have to resort to the last-minute option.
The two last-minute possibilities would likely only happen in specific scenarios. The outgoing Republican Senate would likely only be motivated to act if they were faced with an incoming Democratic president and losing control of the Senate. They might get excoriated by the Republican base (who would be licking their wounds from a big election loss anyway) for approving an Obama nominee, but they would be spinning it as the "least of the bad choices," which might help deflect the inevitable political heat. An incoming Democratic Senate, on the other hand, would likely only resort to the 17-day window option if the Republican won the presidency. This would also enrage Republicans everywhere, but the incoming Democratic senators might not care about that in the slightest. The only other conceivable reason the Democrats would have for pulling this political trigger would be their own fears about who an incoming President Bernie Sanders would appoint -- and that's more of a far-fetched scenario, since many of the newly-elected Senate Democrats might have gotten elected on Bernie's coattails.
The most likely scenario is that neither of these last-minute options will take place, of course. The 17-day window is really nothing more than a quirk of the political calendar, and the lame-duck Republicans likely couldn't break a filibuster (from their own members) to approve an Obama appointee anyway. But while far-fetched, both options do remain in the realm of the possible, so it's interesting to speculate about them for now.
-- Chris Weigant
Follow Chris on Twitter: @ChrisWeigant
i really do think that republican senators would be best served by negotiating with the white house for a compromise pick. a protracted nomination battle that lasts through november will likely motivate the left more than the right, especially in senatorial races.
Are there any black lesbian muslim constitutional sharia law professors out there that Hillary could nominate if the GOP drags this out?
@jfc,
probably not, but a pledge from both democratic candidates to choose a nominee who believes in the "living constitution" would be a good start.
JL
Good thought Poet [3].
I'm just bringing this comment over from yesterday:
The nominee I'd like to see President Obama choose is Tino Cuéllar. You can read about him in this Daily Beast article by Michael Tomasky:
http://www.thedailybeast.com/articles/2016/02/15/the-gop-s-worst-nightmare-scotus-nominee.html
wait and see who Hillary or Bernie appoints and then approve them, or go full-on obstructionist and refuse to appoint both Obama's choice and the incoming president's choice. This last one is rather frightening, because it could set up a prolonged period of only eight sitting justices on the high court.
But... But... But.... "The people have spoken" right??
If the American people let the GOP keep the Senate then that means that "the people have spoken" and that's the way the people want it..
And the entirety of the Left Wingery would accept that, right?? Because "the people have spoken".. :D
You didn't mention the most likely of possibilities... That a GOP Senate allows for a "recess appointment"...
Michale
Clinton is looking worse and worse on the campaign trail, health-wise... This is what?? her third?? fourth?? coughing fit that interrupts her speeches??
Ya'all might want to prepare for a Bernie candidacy and, by default, a Trump POTUS-ency... :D
Michale
i really do think that republican senators would be best served by negotiating with the white house for a compromise pick.
You're probably right..
But the question is, would The White -MY-WAY-OR-THE-HIGHWAY- House negotiate with Republicans...
10,000 quatloos says not on a cold day in hell....
Michale
Michale - why would the GOP Senate allow for a recess appointment?
Not that it matters because the Prez has said he won't make a recess appointment anyway so it's a moot point.
Michale - why would the GOP Senate allow for a recess appointment?
Because it allows them to save face, it reduces the legitimacy of the pick and gives a unified GOP Congress and POTUS the pick in a year or so...
Not that it matters because the Prez has said he won't make a recess appointment anyway so it's a moot point.
I hadn't heard that.. Cite??
Michale
Mopshell
You asked about the "quorum call thing" yesterday.
The Senate uses pro forma sessions to avoid going into an official recess in order to prevent presidents from making recess appointments.
Basically, a couple of Senators from the majority party come in, bang the gavel so that the Senate is in session. They then declare no new business and bang it out of session. They do this every three days.
In order for it to work, the Senate has to be capable of conducting business, whether or not it actually does. Part of the Senate rules states that there is an assumption that a quorum is present so long as the assumption is not challenged.
If a minority-party Senator comes in and as a point of order makes a quorum call, then the majority party has 10 days to get their people back, otherwise the Senate is in recess and the Prez can make an appt.
Given the large breaks the Senate is taking this year and that 24 GOP Senators are up for reelection, doing this repeatedly could easily lead the GOP to give up on this rather than fly back from the campaign trail over and over again. In which case, the Senate would be in recess.
Does that help?
Michale [10],
Here's the cite:
http://abcnews.go.com/Politics/white-house-rules-recess-appointment-replace-justice-scalia/story?id=36937232
JL
http://www.politico.com/story/2016/02/obama-no-scalia-funeral-219384
I am shocked!! Shocked, I tell you!!!
So much for the idea that there are no red states, no blue states, but only a UNITED States...
You can bet that if it was Ginsburg that had died, Obama would be front and center..
Michale
Michale [10],
Here's the cite:
Thanx...
Michale
Michale -
The reason I didn't consider a recess appointment is the fact that once it came up, Obama quickly rejected the idea (see that cite, and many others). My article, though, did have the purpopse of examining far-fetched scenarios, so maybe I should have included it anyway.
There is one "recess" the Senate can't avoid. That's the break between the outgoing Congress and the incoming Congress. Even if the old Senate stays in "pro-forma" session until the 3rd of January, they have to adjourn before the new Senate opens. Whether the time period between those two is measured in minutes or hours, the president is fully able to make a recess appointment at this time. I believe (but I haven't checked) this was pointed out in the most recent SCOTUS ruling, on Obama recess appointments.
From memory (don't hold me to this if it's wrong), SCOUTS tried to define the issue in detail. Since the Senate has developed this "work-around" of pro-forma sessions, it would seem to indicate that the Senate could just NEVER officially go into recess. The justices pointed out that one such recess always exists -- the one between Senates.
Meaning Obama might have to time his signature perfectly, but he could recess-appoint a justice on Jan. 3rd, no matter what the Senate did.
I think.
-CW
Squish McConnell is setting the sheeple up for another betrayal. He just has to keep up the charade long enough to shepherd his RINO herd safely through the valley of death (primary season). Then he can cave to Obama like he always does and he won't even be able to blame the Orange Man this time. Trump really should call him out on his weasel words. Make him vow that he absolutely won't even consider allowing another one of Obama's muslim brotherhood sharia judges on the court.
I don't understand why BHO rubbed out Scalia instead of Thomas. Nino was old. Thomas is likely to be around a while longer. He could have insisted on replacing him with a black person. Maybe time was running out and he had to go with whatever would work.
CW,
I stand corrected.. :D
Michale
Michale [10]
Not that it matters because the Prez has said he won't make a recess appointment anyway so it's a moot point.
I hadn't heard that.. Cite??
This brief report is in The HIll:
http://thehill.com/blogs/blog-briefing-room/news/269461-report-obama-wont-make-recess-appointment
There are several others but this site will only allow one. ::sigh::
Speak2 [11]
Does that help?
Yes it certainly does, thank you!
I hear the GOP are getting around this by not saying which day or what time they are gaveling in and out. I'm supposing from this that no Democrat wants to hang around 24/7 for three days just to catch them at the right moment.
It all seems like a very childish form of cheating to me. Anyway, I'm rather glad that the President has no intention of making a recess appointment.
I also recall a certain Senator from Illinois who, in 2006, joined with other Democrat Senators in stating that they will filibuster ANY nominee that President Bush sends to the Senate...
Ya'all asked for an example of Democrats acting like Republicans over the issue??
There you have it..
Cue choruses of "Well, that's different!!"
:D
Michale
Cue choruses of "Well, that's different!!"
no, it's almost exactly the same. obama the rookie senator with no executive experience made a dumb decision to try to gum up the works instead of having a real nomination discussion. it seems to be a flaw typical of legislators who have not been executives. what's telling to me is that neither bush nor kasich (both governors) has resorted to the posturing that their less experienced colleagues have engaged in this week.
JL
no, it's almost exactly the same. obama the rookie senator with no executive experience made a dumb decision to try to gum up the works instead of having a real nomination discussion. it seems to be a flaw typical of legislators who have not been executives. what's telling to me is that neither bush nor kasich (both governors) has resorted to the posturing that their less experienced colleagues have engaged in this week.
In other words, in this issue, the Democrats said EXACTLY what they are now howling about when the Republicans said it..
To whit, they ain't going to address the President's nominee regardless of how qualified that nominee is..
I was tasked with finding, amongst Democrats, the equivalent actions/statements that have been made by Republicans in the here and now.. ..
Mission Accomplished.. :D
Michale
I was tasked with finding, amongst Democrats, the equivalent actions/statements that have been made by Republicans in the here and now.. ..
i would say the key commonality is not between democrats and republicans, but between legislators, and the key difference is with executives. legislators who have not functioned as executives aren't seeing the bigger picture, while executives (bush, kasich, and now obama) realize that refusal to at least have the discussion is (and was) a mistake.
JL
i would say the key commonality is not between democrats and republicans, but between legislators, and the key difference is with executives. legislators who have not functioned as executives aren't seeing the bigger picture, while executives (bush, kasich, and now obama) realize that refusal to at least have the discussion is (and was) a mistake.
While that may or may not be accurate, ya'all disputed my claim that Democrats have done the same thing that Republicans are doing now...
That's the point..
Michale
@michale,
i didn't dispute that dems have tried to kibosh republican nominees. as far as i know, this is the first time anyone has tried to stop a scotus nominee before even knowing who it was, but you're right, that's a minor distinction. historically, the bigger the partisan overreach has been, the bigger the price at the polls, so it's fortunate for obama that his filibuster of alito didn't last very long.
JL
Michale [25]
While that may or may not be accurate, ya'all disputed my claim that Democrats have done the same thing that Republicans are doing now...
That's the point..
Except, as usual, you moved the goal posts -- again -- and completely failed to prove the point! The issue at question was: had a majority Democratic Senate refuse to accept any SCOTUS nominations in the final year of a president's final term. So far, you have come up with... absolutely zero, nought, none, nada examples of Democrats doing this.
As for 2006 (not a final year of a presidential term)-- in spite of anything new senator, Barack Obama, might have said (and I have not seen your claim confirmed) -- Justice Samuel Alito was confirmed as an Associate Justice of the Supreme Court and Justice John Roberts was confirmed as Chief Justice of the Supreme Court in 2006. That's quite a contrast to the Republican stance of no nominations even being considered let alone confirmed in 2016.
In addition, the US Senate in 2006 was a majority Republican Senate. So no, it is not the same, Michale. What one Democratic senator said in 2006 does not equate with what the entire Republican majority have sworn to do in 2016.
This is what's known as false equivalence.
Barack Obama and 23 other Senators are on record as stating that they will filibuster ANY nomination that President Bush sends to the Senate.
That is EXACTLY what Republicans are doing now...
As Joshua said, it is EXACTLY the same...
Michale
My bust..
Joshua said it's ALMOST exactly the same..
Good enough for me.. :D
Remember, Mopshell.. All the GOP has done is *SAY* they will block any nominee from the President..
Which is EXACTLY what Obama and 23 other Democrat senators did. They *SAID* they would block any nominee from the President..
Michale
so... you're both right. mopshell is right that democrats have never prevented confirmation hearings of a justice, in an election year or any other. michale is right that republicans haven't either - they've only *SAID* that they would. if they actually follow through with that threat, then we'll have to revisit the issue.
JL
Michale [18] -
(I'm writing this on Friday)
Turns out you may have been right. There's a link in FTP to a story where the White House is pointedly NOT ruling a recess appointment out. So they've backtracked. Should be an interesting weekend, because if he does it I think he's only got until Monday...
Mopshell [19] -
Don't forget, you can post as many links as you like, but you've got to post them each in separate comments, that's all. At least that's the way it is supposed to work (yes, I know my filter is being a pain because it is slightly broken right now, sorry to all about that...).
-CW