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Scalia’s death, the GOP debate and the hooey that’s followed

REUTERS/Kevin Lamarque
Senate Majority Leader Mitch McConnell said within hours of Justice Antonin Scalia’s death that the Senate would not confirm anyone Obama nominates.

This is my post about Saturday night’s Republican presidential debate in Greenville, S.C., but it will mostly deal with the bigger story, which took up the first part of the debate, namely the Supreme Court vacancy created by the sudden death of Justice Antonin Scalia.

First, to dispense with the debate in general, my favorite quote came from John Kasich in which he responded, not to the question he had been asked, but to the entire debate up to that point and perhaps the entire Republican race. It went like this:

Moderator JOHN DICKERSON: Governor Kasich, please weigh in.

KASICH: I’ve got to tell you, this is just crazy, huh? (Audience laughter.) This is just nutso, OK? Jeez, oh, man. I’m sorry, John.

Kasich wasn’t really sorry. He was seeking the support — politically, and perhaps emotionally as well — of Republicans who see the race thus far as a clown-car comedy routine in which Kasich had been assigned the role of the straight man.

The “nutso” remark immediately followed a passage during which Donald Trump and Jeb Bush went off the rails and The Donald recommended that former First Lady Barbara Bush — the ol’ Silver Fox herself — take her son Jeb’s place in the Republican presidential field.

Scalia vacancy

But, of course, the debate started with the Scalia death and the Supreme Court vacancy it creates. The discussion was — and will remain for the foreseeable future — full of utter hooey.

The currently fashionable flavor of hooey being sold by Republicans is that some kind of unwritten rule either prohibits presidents late in their last term from nominating justices or requires the Senate to ignore such “lame-duck” nominations. You will hear a lot of future rubbish about such an unwritten rule, so sketchy that even the smart and usually precise Ted Cruz got caught misstating the “rule” Saturday night.

Hooey aside, I believe this to be the situation: Republicans are not going to confirm anyone that Barack Obama nominates to replace Scalia. They have the votes to block any nominee and little incentive to approve one, other than an amorphous sense that they are messing with the U.S. Constitution.

Senate Majority Leader Mitch McConnell said within hours of Scalia’s death that the Senate would not confirm anyone Obama nominates. That is unprecedented, but his right to say so is covered by the First Amendment.

Republicans would prefer that Obama surrender in advance and decline to nominate anyone. He has indicated that he will not take that route, but will nominate someone promptly. There is some talk, including from Sen. Marco Rubio, that if Obama insists on nominating someone, the Senate is under no obligation to even hold hearings on the nomination, let alone allow it come to a vote. As a technical matter, I believe that’s true, too. Congress’ power is to “advise and consent” in the appointment of justices, but clearly they can decline to consent.

There’s a lot of speculation as to whom Obama might nominate and whether there might be someone who could actually get confirmed. Personally, I feel confident Obama will not nominate anyone the Republican-controlled Senate would want to confirm and the Senate will not confirm anyone he might nominate. I hope I’m wrong. If I’m right, our nation’s mythic “system” will be confronting some long-denied realities.

I also feel that something like this situation is the new normal where Supreme Court nominations are concerned. The idea that Supreme Court nominations — or Supreme Court rulings for that matter — exist on a non-political plane is over. Not all, but many Supreme Court cases are and will remain the continuation of partisan policy battles. Whichever side has been unable to win through the elected branches will try to win via the supposedly non-political judicial branch.

And by the way, lest my analysis become overly partisan on this issue, Democratic presidential candidate Sen. Bernie Sanders of Vermont has taken to saying, as part of his standard stump speech, that he will not nominate anyone to the Supreme Court who is not committed to overturning the 2010 Supreme Court ruling in Citizens United vs. The Federal Election Commission, the case that gave rise to the super-PAC phenomenon. I do not recall any previous case of a presidential candidate openly acknowledging that he would require such a commitment — or any commitment to rule a particular way on a particular matter — from a potential Supreme Court nominee. The Constitution doesn’t literally prohibit a presidential candidate from demanding such a commitment, but in openly doing so, Sanders is messing with some powerful myths.

This may or may not become the new normal. It is both troubling on one level and admirably candid on another if, like me, you assume that the Sanders heresy has been practiced by presidents in recent Supreme Court vacancies, just not so openly.

Nominations to the Supreme Court have already become partisan battles. In the old days, when the myth of an apolitical court was in full bloom, justices were often confirmed by overwhelming margins, or even in a huge portion of cases, by an unrecorded voice vote of senators just shouting “aye.”

By contrast, the most recent Obama appointee — Elena Kagan — was confirmed by 63-37. Break that down by party and you’ll find that every Democrat voted in favor. Republicans voted against by 37-5. Of the five Republicans who clung to the old tradition of voting aye unless there was something corrupt about the nominee, three are now gone.

The last Republican nominee to be confirmed, Bush nominee Samuel Alito in 2006, got the same treatment in reverse, getting an aye vote from every Republican but just four from Democrats.

As this becomes ever more clear, it threatens something deeper in our system.

Years ago, I wrote a series for the Strib that later became a book titled “Our Constitution: The Myth that Binds Us.” It argued that a great deal of what we are all taught and believe about our constitutional system is more myth than reality. But as long as we all believe in the myth, that belief binds us together and provides a slightly magical way of getting us peacefully through national crises, believing in the Constitution like some believe in their bibles.

One of the key props of the myth was the notion that the Supreme Court provided a relatively non-political, non-partisan means of resolving big disputes without tearing apart the fabric of the nation. The unanimous 1974 Supreme Court ruling that ordered President Richard Nixon to hand over the Watergate tapes was then the apotheosis of that myth-based system. Three justices whom Nixon had appointed joined in that ruling. Nixon felt he had no option other than to obey, even though it led to his resignation. 1974 is just 42 years ago.

I’m afraid I don’t believe that would happen today. I don’t know what would happen instead, but it would be more partisan and divisive.

Saturday night’s debate

Here’s a quick recap of the discussion of what should happen in the wake of Scalia’s death, as it played out on the Republican debate stage Saturday night.

Moderator Dickerson said that he understood that Donald Trump has said that Obama shouldn’t make a nomination, but he challenged Trump to say whether he would do the same if he had a chance to appoint a justice in the last year of his term, and wouldn’t it be “an abdication to conservatives in particular not to name a conservative justice with the rest of your term?”

Trump (who, you have to admit, is harder to predict than any of the others) totally crossed him up, thus: “If I were President now I would certainly want to try and nominate a justice. I’m sure that, frankly, I’m absolutely sure that President Obama will try and do it. I hope that our Senate is going to be able — Mitch, and the entire group, is going to be able to do something about it.”

This was actually candid and not the particular brand of hooey Dickerson expected, so he followed up:

DICKERSON: So, just to be clear on this Mr. Trump, you’re OK with the president nominating somebody?

TRUMP: (Again with admirable candor): I think he’s going to do it whether or I’m OK with it or not. I think it’s up to Mitch McConnell and everybody else to stop it. It’s called delay, delay, delay.

Dr. Ben Carson agreed that Republicans should do whatever is necessary to prevent Obama from filling the vacancy.

Bush was asked whether — like Sanders on Citizens United — he would have any litmus test that he would require a potential Supreme Court justice to pass before Bush would nominate him. He said no litmus test. That’s from the old-school playbook.

Rubio was the first to bring up the specific bit of hooey I referred to above, the idea that there is an unwritten rule against the Senate confirming the Supreme Court appointments of “lame-duck” presidents. Rubio says this rule has been in place for at least 80 years.

The definition of a “lame duck,” for this purpose, is a president who cannot run for another term, which would actually refer to any president in his second term. And lots of presidents have successfully filled second-term vacancies, but for the purpose of this particular rule, it refers to a president in the last year of his second term.

Cruz also cited the “80 years of precedent of not confirming Supreme Court justices in an election year.”

Cruz misspoke, as I mentioned above. Justice Anthony Kennedy — the last of the Reagan appointees — was confirmed in early 1988, the last year of Reagan’s second term. But he was nominated in late 1987. And Cruz can blame the Dems for that one because the seat Kennedy filled — replacing Lewis Powell — was first supposed to have been filled by Robert Bork, whose controversial nomination was stalled and then voted down on a heavily party-line vote in mid-1987.

But the real hooey-ness problem with the “lame-duck rule” is that its current promoters basically can’t point to the cases of vacancies that occurred in the eighth year of a presidency but were not filled because either the president or the Congress invoked the “rule.”

That’s a pretty big problem for those claiming such a “rule” exists. The closest they can come is one instance, in 1968, which doesn’t involve filling an actual vacancy on the court. Chief Justice Earl Warren wanted to retire. President Lyndon Johnson wanted to elevate his crony Abe Fortas, who was already on the Supreme Court, to the chief’s slot. Fortas’ nomination never got a vote in the Senate. But he also had scandal issues that forced him to resign from the court soon after. And that flawed case seems to be the only specific instance that all these rule-of-thumbers can point to. It just turns out that you don’t have vacancies occurring during the eighth year of a two-term president that went unfilled. That’s because the vacancies didn’t occur.

The next new normal

There’s something else you should know for the long-term on this issue, although it doesn’t have much effect in the current situation because the Republicans control the Senate and the president is a Democrat.

It takes 60 votes in the Senate to break a filibuster. The filibuster rule was recently revised so that many nominations cannot be filibustered, including judicial appointments, but with one exception. Confirmation votes for nominees to the Supreme Court can still be filibustered, and it takes 60 votes to break such a filibuster. The current Senate has 54 Republicans. In the event that Obama’s nominees gets to the floor, it could theoretically be filibustered, and Sen. Cruz said on ABC Sunday that he would surely do so if it came to that. But the chances of that seem remote because McConnell is basically pledged not to allow any such nomination to get that far.

But if what is happening now becomes the new normal (which is what I expect unless we somehow rediscover compromise) and if both parties are equally committed to preventing the other party’s president from successfully appointing Supreme Court justices, we could — realistically, I think — be heading for a time when Supreme Court vacancies cannot be filled unless one party holds both the presidency and a 60-vote majority in the Senate.

That situation — the Dems held the White House and exactly 60 votes in the Senate — occurred briefly from mid-2009 (because of the long Minnesota recount) until early 2010, when Ted Kennedy died and was replaced by Republican Scott Brown. But the frequency of either party controlling the whole show with a filibuster-proof majority is a rarity in recent history.

I can’t see the future, but it is at least credible to contemplate a future when the court shrinks as the circumstances for confirming any new members becomes rare.

The Constitution, by the way, does not fix a number of justices necessary for the court to rule.

Correction: An earlier version of this article incorrectly stated that Justice Lewis Powell was a Minnesotan and that President Johnson nominated Abe Fortas to replace a retiring Warren Burger as chief justice. Fortas was nominated to replace Earl Warren.

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Comments (86)

  1. Submitted by Charles Thompson on 02/15/2016 - 08:55 am.

    more hooey

    and this morning cruz comes out with guns blazing – the 2nd amendment will be repealed if Obama appoints! what a schmuck.

    • Submitted by Dennis Tester on 02/15/2016 - 09:34 am.

      Advantage Cruz

      Given Ted Cruz’ intimate knowledge of the Court (he’s argued and won cases before them representing Texas) and his unchallenged constitutional bona fides, he will immediately gain support from undecided conservatives to be the best candidate to replace Nino with the most worthy to be the Court’s conservative standard bearer.

      Though not a Cruz supporter up to this point, I’m convinced this will alter his campaign to get the 2nd Amendment types on his side and it will resonate with most.

      • Submitted by Paul Brandon on 02/15/2016 - 09:40 am.

        Just because he knows better

        doesn’t mean that he won’t say whatever’s politically expedient.

      • Submitted by Edward Blaise on 02/16/2016 - 08:02 am.

        Constitutional Frauds

        Today’s (this Mornings?) Republican interpretations of the constitution:

        No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President

        Really Means:
        If you are a Republican and your mom was born in Tennessee and you spent you adult life as a dual citizen due to your Canadian birth: NO PROBLEM, it’s settled law. Now if you are a Democrat and if your mom was born in Kansas and married a black guy from Africa, we need to really look into that.

        “he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law…”

        Really Means:

        During the last year of a Presidents term he shall not nominate Judges of the Supreme Court. Unless you are a Republican with the initials RR.

        A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed

        Really Means:


  2. Submitted by Pat Berg on 02/15/2016 - 09:02 am.

    They just write their own rules as they go along

    If we hold with the Republican view of things, then I guess Obama might as well take his family to Hawaii for an 11 month vacation because apparently he ceases being president in an election year.

    Hmmmm . . . . now what would THAT do to global security?

    Seriously, do these people even listen to themselves?

  3. Submitted by Hugh Gitlin on 02/15/2016 - 09:02 am.

    I thought the President had a 4-year tem

    Not a 3 year & 1 month term.

  4. Submitted by Dennis Tester on 02/15/2016 - 09:23 am.

    August 1960

    “In August 1960, the Democrat-controlled Senate passed a resolution, S.RES. 334, “Expressing the sense of the Senate that the president should not make recess appointments to the Supreme Court, except to prevent or end a breakdown in the administration of the Court’s business.”

    Each of President Eisenhower’s SCOTUS appointments had initially been a recess appointment who was later confirmed by the Senate, and the Democrats were apparently concerned that Ike would try to fill any last-minute vacancy that might arise with a recess”

    The recess appointment reference is relevant here because the senate goes into recess on January 3rd, 2017. This gives Obama 17 days to be make any recess appointments until he leaves office on the 20th.

    • Submitted by Paul Brandon on 02/15/2016 - 09:42 am.

      Who (other that you)

      is talking about a recess appointment.
      Congress is still supposedly in session (although you couldn’t tell it from Republicans).

    • Submitted by RB Holbrook on 02/15/2016 - 10:13 am.

      Recess Appointment

      Very interesting, but who said the President intends to make a recess appointment?

    • Submitted by Larry Moran on 02/15/2016 - 12:01 pm.

      Recess Appointment

      The use of this “sense of the Senate’ (not even a Senate rule), as with the Thurmond Rule, is a red herring. The president has stated that he will wait until the Senate is back in session next week to send up a nomination. In addition, a recess appointment must be confirmed by the end of the end of the Congressional session. If the Senate didn’t like his appointment the person would not be confirmed. And to believe any president would make an appointment in the 17 days between January 3rd and January 20th is just a little paranoid.

    • Submitted by Brian Simon on 02/15/2016 - 01:48 pm.

      Who defines exceptions?

      “except to prevent or end a breakdown in the administration of the Court’s business”

      As already noted, it’s not a law, just a statement. Even then, it seems that leaving a vacancy for a year – the current Republican plan – amounts to such a breakdown.

      The other amusing nuance is their assumption that the next POTUS is a Republican & their party holds a 60 seat majority to get a little Scalia appointed.

    • Submitted by Connie Sullivan on 02/15/2016 - 02:10 pm.

      Presidents do no appoint members of the Supreme Court. They nominate them. So no president has even appointed anyone to the Supreme Court during a congressional recess. This is the kind of misleading GOP misinformation that drives intelligent people up the wall.

      • Submitted by Doug Gray on 02/16/2016 - 10:40 am.

        Ike did it

        Actually Eisenhower appointed Justice William Brennan less than a month before the 1956 Presidential election during a recess of the Senate. The idea was that appointing a Northeastern Catholic Democrat would help at the polls. Brennan won confirmation after the election with only one no vote: guess who…

      • Submitted by RB Holbrook on 02/16/2016 - 01:29 pm.

        Not Exactly

        The President both nominates and appoints. According to Article II, section 2 of the US Constitution, the President “shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court . . .”

        The recess appointment power is clearly spelled out in the same section.

  5. Submitted by Jeff Michaels on 02/15/2016 - 09:40 am.

    A Revealing Timetable

    President Reagan nominated Robert Bork to replace Lewis Powell July 1,1986. The Democrat-controlled senate rejected that nomination. The senate later approved the nomination of Anthony Kennedy and he was sworn in Feb. 18, 1987 or 233 days after the official appointment process started.

    If President Obama is able to officially nominate someone by April 1 there will be only 218 days before a new president is elected. We should leave it up to voters to decide which new president makes that extremely important appointment. Why should Hillary Clinton or Bernie Sanders be denied that opportunity?

    This is certainly a fair solution and I know for certain equal treatment is a goal sought by all liberals and Democrats. As one of those aforementioned candidates might say, “Power to the people.”

    • Submitted by RB Holbrook on 02/15/2016 - 10:24 am.

      Up to the Voters

      The voters have already decided whom they want making Supreme Court appointments through January 20, 2017.

      I do admit I like the idea of a President Sanders or President Clinton nominating ex-President Obama to the Court.

    • Submitted by Todd Hintz on 02/15/2016 - 11:08 am.


      The people have already decided which president they want to make supreme court selections and that person is President Obama. He has, after all, been elected twice by the people. Now if someone else wants to make that selection, whether it’s Bernie, Hillary, or a Republican candidate, then they need to wait till they’re duly elected and another member of the court either retires or passes on. Until that time comes, Obama is the person who has the right and obligation to pick the next justice.

    • Submitted by Frank Phelan on 02/15/2016 - 11:55 am.

      Nope, It Was A GOP Majority

      In July of 1986, the GOP had the majority in the Senate. Control did not flip until after the fall 1986 elections. In fact, that’s why the vacancy occurred. Warren Burger knew the GOP stood a good chance to lose the Senate in the fall so he gave Reagan the chance to pick his successor with a GOP Senate. Politics on the court way back then!

  6. Submitted by Jim Million on 02/15/2016 - 09:54 am.


    All will settle in time, probably not before the election.
    Come on, Eric, there is no “lame-duck rule”–and everyone knows that. There certainly is a lame-duck wish, however.

    So Dems see great opportunity, but without the Pelosi/Reid Cabal to do anything with it.
    Interesting how stars and votes align to mess up the best-laid wishes of the suddenly powerless.

    SCOTUS will likely enter summer recess as is, so no need to say much more, other than to note this morning’s Strib tells us: “Klobuchar in mix as talk swirls around Supreme Court seat.”

    That’s how dopey this topic has become in just two days of one weekend. Pitiful, really…

    • Submitted by Paul Brandon on 02/15/2016 - 11:34 am.

      The R’s are more like Duck Soup

      to put it in Marxist terms.

      • Submitted by Steve Hoffman on 02/15/2016 - 01:35 pm.

        But what if …

        If there had been a Supreme Court vacancy in 2008, would the GOP have wanted George Bush to hold off appointing a justice and let the next president do it? I smell hypocrisy. Whoo, overpowering.

  7. Submitted by RB Holbrook on 02/15/2016 - 12:49 pm.

    A Couple of Points

    “I do not recall any previous case of a presidential candidate openly acknowledging that he would require such a commitment — or any commitment to rule a particular way on a particular matter — from a potential Supreme Court nominee.” Ronald Reagan pledged to appoint only justices who were opposed to abortion.

    Justice Kennedy was indeed appointed to replace Lewis Powell, but Justice Powell was from Virginia.

    Justice Fortas was proposed as a replacement for Earl Warren, not Warren Burger.

    At least twenty justices were appointed/confirmed during presidential election years. These justices ranged in stature from Louis Brandeis and Benjamin Cardozo to Roger Taney.

  8. Submitted by Charles Holtman on 02/15/2016 - 09:58 am.

    It is hardly worth replying

    since the argument is so obviously without rationale and disingenuous – except that the establishment media will recite it as a position having some weight until enough folks assume that it does.

    A rationale for Mr Obama’s abstention would exist if a justice served only for the term of the president who appointed him or her. The late Mr Scalia continued to undermine the Constitution with his ideology and his politics for 27 years after his appointing president left office. What is the possible relevance of whether Mr Reagan had two years or just one year left in office at the time he forwarded Mr Scalia’s nomination?

  9. Submitted by Tim Walker on 02/15/2016 - 09:59 am.

    Well, there is an unspoken “rule”

    But one has to go back to the mid-1880s to find it being applied:

    “The closest comparison to the wholesale rejection President Obama is about to face with his nominee is President John Tyler, who holds the unenviable record of having four of the five men he put forward fail to make it to the Court. The fight was part of a larger clash between Tyler and the Whig-controlled Senate, where Whig lawmakers hoped Sen. Henry Clay of Kentucky would win the next presidential election in 1844.”

    (From TPM:

    Not surprising, really, as the GOP wants to halt social progress and go back in time to the mid-19th century anyway…

    • Submitted by Dennis Tester on 02/15/2016 - 10:45 am.

      Contrary to popular belief

      it’s not the role of the SCOTUS to advance or halt “social progress.” Its role is to interpret whether or not a law passed by a legislature passes constitutional muster.

      You can gain a good idea of what that means by reading some of Scalia’s most famous dissents.

      • Submitted by Tim Walker on 02/15/2016 - 12:37 pm.

        Reading comprehension!

        I wrote about how GOPers want to turn back the clock, not the SCOTUS.

      • Submitted by Dennis Wagner on 02/15/2016 - 07:06 pm.


        Aren’t those folks human, and they make a judgement/opinions. Seems, our departed Justice, didn’t have a problem re-interpreting the constitution, in a number of his opinions. Like Citizens United, Yes DT, there are many lines in the federalist papers that address the potential problems with unlimited financing leading to corruption in our political system. As we all might/should know, the Federal Papers were the backbone to Ratifying the constitution.

  10. Submitted by Tim Smith on 02/15/2016 - 10:25 am.

    Repubs played right into

    Obama and the dem machine’s liberal hands. Obama will nominate a far lefty who is of color or LGBT and when the senate ignores the nomination they will start a hysterical firestorm that repubs all hate (insert label here). They use it as motivation to get that group to the polls. One thing we know is that Obama and the Clintons will play divisive politics with this as much as anyone. They can’t change their spots now.

    • Submitted by Todd Hintz on 02/15/2016 - 11:13 am.

      Voting Machine

      Hey, I think you’re on to something here! That’s actually a pretty good way to get liberals to the polls in November.

    • Submitted by Frank Phelan on 02/15/2016 - 11:58 am.

      Thank Goodness

      The GOP never plays divisive politics.

      Karl Rove: The Great Uniter.

    • Submitted by RB Holbrook on 02/15/2016 - 12:57 pm.

      Played Right Into!

      Are you saying that Scalia’s death was some kind of political set up?

      Frankly, if sending a “labeled” to paint the Republican Party as “haters” of anyone other than straight, white, male non-Latino Christians they have only themselves to blame. I suppose that the Republicans have been playing into the Democrats’ hands on this issue for the past 45 years.

      • Submitted by Pat Berg on 02/15/2016 - 01:55 pm.

        Conspiracy theorists

        I’ve already seen a comment in a thread following an article (not on MinnPost) implying that there should be an investigation into the possibility of foul play in Scalia’s death because – you know – Obama.

        Seriously, this stuff never stops.

        • Submitted by Jim Million on 02/16/2016 - 09:35 pm.

          Correct about that…

          Years ago a somewhat bizare British theatrical piece came from London to New York.

          “Beyond the Fringe” it was titled.

          And, it’s only February now…

  11. Submitted by Steve Titterud on 02/15/2016 - 10:41 am.

    All this chicanery gives the lie to the notion that…

    … Supreme Court justices are non-political.

    I’m not talking about the nomination process or Senate confirmation here, but rather, the Justices themselves.

    Who can look at an Alito or Scalia (or for that matter, Burger or Douglas) and honestly say their political views do not influence their judicial thinking and their decisions??

    So we are seeing a struggle to get someone with the “right” politics onto the Court, according to the political views of whichever side you’re on, or perhaps what your pet issue is.

    The Republicans are certain that they cannot support ANY appointee of Obama, but I think they are wrong. What if he appointed someone who had the widespread respect of everyone – someone with no political leanings of any kind, completely non-controversial, the kind of candidate who was so thoroughly qualified in instances past as to get a unanimous or near-unanimous approval in the Senate??

    Maybe enough Republicans would be too embarrassed to vote against, or perhaps a little calculus would persuade some that it could be worse, if the GOP meltdown ushers a Democrat into the White House.

    If Obama can set aside race, gender, and liberal politics long enough to appoint such a candidate, it would be fascinating to see what develops. He may not be up to it, however.

    • Submitted by Jim Million on 02/15/2016 - 10:55 am.

      Important Difference

      Philosophical vs. Political

    • Submitted by Ray Schoch on 02/15/2016 - 12:04 pm.


      Obama may not be up to it, but the operative word there is “may.” We already know the Republicans in the Senate are not up to it, since Mr. McConnell has already announced that, no matter who Obama nominates, that nominee will not be considered.

      One more in a lengthy string of instances wherein current Republicans at the national level demonstrate that they’re not interested in governing, nor are they concerned about the welfare of the country as a whole, but merely want to rule, as in the good ol’ days of Divine Right, or, at worst, the good ol’ days when minorities, women, people who don’t own land, etc. – you know, the rabble – weren’t allowed to have any real influence on their government at all, at least in any official sense.

  12. Submitted by Ray Schoch on 02/15/2016 - 12:17 pm.

    Worthwhile read

    Here’s an interesting piece of analysis I came across this morning:

    Personally, I’m with RB Holbrook at 10:24 AM on this one. THAT would be fun to watch.

    Beyond that, it would make sense, especially politically, since we all seem to be assuming (correctly, I believe) that no Obama nomination is going to be confirmed anyway, for Obama to nominate a woman of color, of whom there are several qualified candidates already in federal judgeships. Another qualified candidate along those lines is the U.S. Attorney-General, Loretta Lynch. Her history is that of a prosecutor, so the “hopelessly liberal” label isn’t going to stick – unless you think the behavior of the police in my former home town (Ferguson, MO) has been above reproach.

    Nominating a woman of color will allow Mr. McConnell and his fellow Senate Republicans, should they remain irrationally stubborn, as they seem to be lately, to alienate, in an election year, the bulk of the minority population of the country as well as a sizable segment of voting females who might otherwise be politically “independent.” Therein lies the potential for Republican catastrophe.

    We live in interesting times…

    • Submitted by Logan Foreman on 02/15/2016 - 05:43 pm.

      Like the times

      Before WW2

    • Submitted by Joe Musich on 02/15/2016 - 08:28 pm.

      Yes ! Go with Lynch ! Please …

      Not to stir the political pot which probably cannot be stirring any harder then even using a metaphorical jet ski as the stirring implement But she just might be the smartest candidate out there an already vetted so to speak. And to regress into partisanship for a moment maybe her presence would bring on other health issues amongst certain elected officials. My apologies for insensitivites!

      • Submitted by Jim Million on 02/17/2016 - 12:12 am.

        Justice Lynch

        Regardless of rulings, history would remember that name, for sure.

        Sometimes it’s just not possible to be serious about this stuff.

  13. Submitted by Neal Rovick on 02/15/2016 - 12:43 pm.

    In an odd sense, the current political field is encouraging a more political appointment process with more politically oriented nominees of lesser standing.

    What “impartial” judicial paragon will subject themselves to a process that is clearly going to be exhaustive, exhausting and, if the Republicans hold to their promise of delay, ultimately fruitless ?

    Who would go through that year or do of nonsense ?

    Quite likely someone with an agenda.

  14. Submitted by Jim Roth on 02/15/2016 - 02:32 pm.

    On the Short List

    There are undoubtedly possible nominees on a list that was compiled in connection with earlier nominations and since updated. One who is likely high on the list is Judge Sri Srinivasan. He is the son of immigrants from India, grew up in Kansas and earned a J.D./M.B.A. from Stanford. He clerked for two Republican judges, one being Justice Sandra Day O’Connor. He was Obama’s deputy solicitor general and argued twenty-five cases before the Supreme Court. He won confirmation to the D.C. Circuit Court of Appeals in 2013 by a vote in 97-0.

    Others include Judge Paul Watford in the Ninth Circuit Court of Appeals, Judge Jane Kelly in the Eighth Circuit Court of Appeals (who was confirmed in 2013 by a vote of 96-0), and Judge Patricia Ann Millett of the D.C. Circuit.

    While there are exceptions, most appointments to the Supreme Court come from Circuit Court Judges, and I suspect these are top choices being considered. (I don’t have inside information. I just pay attention). I’m sure there are others including Senator Amy Klobuchar whose name has been mentioned.

    • Submitted by Steve Titterud on 02/15/2016 - 06:08 pm.

      Either of those who previously got unanimous

      …approval by the Senate would seem to offer no traction for rejection now.

      It would be good for the country to nominate a completely non-controversial candidate.

      • Submitted by Dan Landherr on 02/16/2016 - 11:57 am.

        Try to find a completely non-controversial candidate

        Anyone in a position of power who has never offended someone else probably never had a chance to do anything substantial. Are you looking for a Supreme Court Justice or head of the International Boundary and Water Commission?

        • Submitted by Steve Titterud on 02/16/2016 - 01:49 pm.

          Two potential candidates were confirmed unanimously..

          …by the Senate. 96-0 & 97-0. Both were confirmed to seats on federal circuit courts of appeal.

          That’s what I mean by non-controversial. They have already proven to be so in the U.S. Senate.

          • Submitted by Tom Anderson on 02/16/2016 - 08:21 pm.

            Unanimously confirmed

            For a different position.
            The same logic has been used to suggest that Hillary Clinton would make a good President since she was married to a President.
            And don’t forget every other unanimously confirmed judge, no picking and choosing from the ones that you’d like.

            • Submitted by colin kline on 02/17/2016 - 08:08 pm.


              If a judge were approved unanimously for lower courts what would be a good reason for a senator to change their vote for the supreme court?
              You’re right I don’t get to choose the unanimously approved judge of my choice, President Obama does if he so chooses.

              • Submitted by RB Holbrook on 02/18/2016 - 09:33 am.

                The Only “Good” Reason

                “If a judge were approved unanimously for lower courts what would be a good reason for a senator to change their vote for the supreme court?” The fact that said judge is being appointed by President Obama, and the fight over the confirmation is a good way to keep the Republican base riled up.

                You don’t think that a matter of principle would be involved, do you?

                • Submitted by Tom Anderson on 02/19/2016 - 06:39 pm.

                  There are a lot of former Heisman winners

                  That didn’t make it in the pros. There are plenty of good lawyers that you wouldn’t want to be your Attorney General. Is Mark Dayton a better Governor than Senator or Auditor?

                  • Submitted by RB Holbrook on 02/21/2016 - 03:09 pm.


                    Are you replying to my comment? If so, I’m afraid I don’t understand what you’re getting at.

                    • Submitted by Tom Anderson on 02/22/2016 - 08:48 pm.

                      Perhaps I am suggesting

                      That there might be more than one reason why a Senator would support a person for a lower rung job without hesitation, but withhold support for a very high position.

  15. Submitted by Connie Sullivan on 02/15/2016 - 02:48 pm.

    I have been really shocked by the GOP suggestion, its insistence, that the United States go without a nine-justice Supreme Court for up to two years. That we risk having 4-4 decisions (are ties even “decisions”?) from early 2016 to the beginning of the 2017 session, in October of that year when new cases are heard (SCOTUS doesn’t hear cases between May and October).

  16. Submitted by Robert Gauthier on 02/15/2016 - 02:53 pm.

    Of course

    That degree in Constitutional law our president immediately disqualifies his judgement.

  17. Submitted by Neal Rovick on 02/15/2016 - 04:12 pm.

    Big baby Trump…Apparently

    Big baby Trump…

    Apparently can’t stand being attacked in debates–his “agreement” with the GOP is in breach–might go third party.

    Maybe Mr. Trump’s imagining President Trump nominating his sister to the Supreme Court.

    Fun times indeed.

    Great opportunity for popcorn sales…

  18. Submitted by Charles Thompson on 02/15/2016 - 05:01 pm.


    Cruz will be the first man to serve simultaneously president and supreme court justice. He isn’t yooge, but he is chosen. Back in the reality based community Obama will nominate a highly qualified candidate and the Republicans will do what they do best. Nothing.

  19. Submitted by Tom Anderson on 02/15/2016 - 07:05 pm.

    As far as the people deciding

    Many previous commenters rightly point out that the voters chose President Obama (3 1/2 years ago) to nominate Supreme Court justices. None of the commenters mentioned that the voters chose a Republican controlled Senate 1 1/2 years ago to review and vote on the President’s nominees for the Court. The people are wise indeed. Too bad nobody noticed…

    • Submitted by Frank Phelan on 02/15/2016 - 08:34 pm.

      Well, 1/3 Any Way

      In 2012 the entire electorate voted for Obama by a majority. In 2014 a minority (the 1/3 of the states having Senate elections that year) choose GOP candidates who, along with those previously elected, comprised a majority.

      Presumably, the 2012 electorate knew they were giving Obama the power to nominate SCOTUS justices for the full 4 year term. You claim that, “…the voters chose a Republican controlled Senate 1 1/2 years ago to review and vote on the President’s nominees for the Court.” I don’t recall any GOP Senate candidates campaigning on a promise to block any of Obama’s SCOTUS appointees, without even hearing who they may be. The GOP is promising there will be no review or vote, just outright rejection!

    • Submitted by colin kline on 02/16/2016 - 01:48 am.


      Nobody is telling the Senate not to do their job.

      • Submitted by Tom Anderson on 02/16/2016 - 08:13 pm.

        But there are suggestions

        That they approve the choice of the President, who is looking to produce a choice quickly, and why not, it’s only a lifetime appointment.

        • Submitted by Pat Berg on 02/17/2016 - 07:33 am.

          There are suggestions . . . .

          that they seriously and legitimately consider the person who is nominated. Not reject any nomination that might be made before it has even happened.

          Let the process play out.

          • Submitted by Jim Million on 02/18/2016 - 11:06 am.

            Second that..

            Let us not become mindless fans in the stands, watching so many ratings games played with few rules and no referees.

        • Submitted by Dan Landherr on 02/17/2016 - 09:17 am.

          Presidents don’t make snap decisions on Supreme Court nomination

          I’m sure President Obama has a list he can use that is updated periodically. He’s already nominated two justices, he just needs to go over his existing list again.

    • Submitted by Pat Berg on 02/16/2016 - 06:46 am.

      Then let them uphold the Constitution

      Fine. Then let them all do what the Constitution directs they should do. Let the President nominate and let the Senate vote to confirm (or not).

      None of this “We don’t think he should nominate anyone and if he does we won’t even let it out of the Judicial Committee” nonsense.

      Just let the process play out as it is supposed to.

    • Submitted by Abiram Ganesh on 02/16/2016 - 07:15 am.

      And that is because

      The reason commenters keep bringing up the ‘president for 4 years. – is because the republican candidates and Senate figures are suggesting that there is an unwritten rule that the president cannot nominate in an election year.

      No one is saying that the Senate is forbidden from rejecting the nomination.

      I would see merit in your argument if Clinton or Sanders came out and said that any nomination in an election year should be mandatory be confirmed by the Senate. I don’t think they are naive/desperate enough to suggest that.

      • Submitted by Tom Anderson on 02/16/2016 - 08:16 pm.

        Merit in noticing

        That the President was elected and therefore gets to choose while nobody mentioned that the Senate was elected too. I didn’t think that the obvious would be meritless.

        • Submitted by colin kline on 02/17/2016 - 08:14 pm.

          Once again

          No one is telling the Senate not to do their jobs.

        • Submitted by RB Holbrook on 02/18/2016 - 02:12 pm.

          The Senate

          What’s your point? The North Dakota Agriculture Commissioner was elected, too, but that doesn’t mean he has any special right to choose a US Supreme Court Justice.

          The Senate was elected, but it was not elected to nominate or appoint justices. Read the Constitution: the role of the Senate is limited to “advise and consent.”

          Back in 1970, one young constitutional scholar noted that the Senate’s role should be limited to deciding if a candidate is qualified. Political philosophies should not enter into it, since it is the President’s privilege to reshape the Court according to his ideology. Of course, I’m sure Senator McConnell will dismiss that article as some youthful folly.

    • Submitted by RB Holbrook on 02/16/2016 - 07:44 am.

      What Was There to Notice?

      I guess I didn’t “notice” the part in the Constitution that says the results of Congressional elections nullify the results of a Presidential election. For that matter, I didn’t “notice” the part that says the President “shall nominate . . . judges of the Supreme Court, unless the Senate is controlled by the opposing party in the last year of the President’s term.” Please direct me to that text.

      I also failed to notice why the results of a midterm election in which 36.4% of the electorate voted takes precedence over the results of a Presidential election in which 54.9% voted.

  20. Submitted by Dennis Wagner on 02/15/2016 - 08:00 pm.

    How about a War?

    We were attacked last weekend: Should we wait until about this time next year to see if the people elect a pro-war or anti war candidate? Don’t want a lame duck president asking for a declaration of war! Or perhaps responding to an epidemic, state of emergency? Hopefully we won’t have another 9:11 type incident, would take almost a year to get the Police Fire and Emergency crews on site!

  21. Submitted by Joel Stegner on 02/15/2016 - 08:00 pm.

    Cowards don’t vote

    Republicans have voted more than 50 times to get rid of Obamacare, when they know it won’t matter. When Obama nominates a new Supreme Court, their responsibility is to vote yes or no, and if they vote no to defend their vote. To refuse to vote is failure to do their job. If they don’t have the courage to vote down a nominee they don’t approve, they should resign as too weak – gutless wonders that they are. They have final say, so go for it if you think that the Supreme Court should become a rubber stamp kangeroo court serving your side.

  22. Submitted by John Appelen on 02/15/2016 - 09:37 pm.

    An Actual Impartial Justice

    Just imagine if Obama actually nominated a true Centrist Justice who may get approved… Now that would be a pleasant surprise…

    • Submitted by Pat Berg on 02/16/2016 - 08:21 am.

      Yes it would

      We don’t know who he is going to nominate yet. Which is only one of many reasons why it is so patently absurd for anyone to either say he should nominate no one or that they will automatically reject (or refuse to even let the process play out for) anyone that he does nominate.

      • Submitted by Jim Million on 02/16/2016 - 09:42 pm.

        This afternoon

        In his Rancho Mirage presser, he was asked directly if he would nominate a “moderate.”

        He said, “No,” so I guess we now know.

        • Submitted by Pat Berg on 02/17/2016 - 07:27 am.

          No we don’t

          No, we don’t yet know who he is going to nominate. Until he names a name, we don’t know.

        • Submitted by RB Holbrook on 02/17/2016 - 08:54 am.

          No, We Don’t Know

          Here is the exact exchange:

          Q: Mr. President, following up on that, should we interpret your comments just now that you are likely to choose a moderate nominee?

          A: I don’t know where you found that. You shouldn’t assume anything other than that they will be well-qualified.

          Just speaking for myself, I remember fondly the days when President GW Bush faced such pressure to appoint a “moderate” nominee, and the intense displeasure from “moderates” when he did not do so.

          • Submitted by Jim Million on 02/17/2016 - 03:50 pm.

            Take it either way, it seems


            After just watching this clean feed of the presser, I see where my impression originates: with his quick and firm response of “No” between the lines you post. [about one-third into the video]

            I took his response as two separate clauses, perhaps incorrectly, perhaps not. He is a clever guy, after all.

            It’s a toss-up, I guess. No harm, no foul in any case, RB.

            Just curious: Was his “No” included in your transcript source? If not, why?

            • Submitted by RB Holbrook on 02/17/2016 - 04:30 pm.

              “Was his ‘No’ included . . .”

              Yes; my bad for not including it. I took the “no” as an answer to “may we assume . . .”

              In any event, “moderate” is at once the most overused, and the most meaningless, term in the American political lexicon.

    • Submitted by colin kline on 02/16/2016 - 08:41 am.


      I guess since the Republicans are such obstructionists the Democrats should just give up and give them whatever they want.

    • Submitted by RB Holbrook on 02/16/2016 - 08:56 am.


      Please explain why a centrist would necessarily be an impartial Justice.

      Please explain also why you think the Republicans would agree to find common ground with the President on anything. He could nominate Senator Cruz for the Court and the nomination would be rejected.

      • Submitted by John Appelen on 02/16/2016 - 10:30 am.


        Don’t you get tired of knowing where the majority of the Justices will rule just based on their political affiliation?

        Wouldn’t it be nice to actually have Justices who rule based on the Constitution and sometimes surprise us, not on how they want to socially engineer our society?

        Imagine if they were all like Justice Kennedy?

        • Submitted by RB Holbrook on 02/16/2016 - 12:27 pm.


          Centrism does not equate with a lack of bias or predictability, unless the Justice would make a conscious effort to “balance” liberal decisions with corresponding conservative ones. Bias is a fact of human existence. It strains credulity to think that an educated person would have no opinions one way or another on the constitutional issues that have come before the Court, and that are likely to arise again. It is also hard to imagine that these opinions have never been expressed.

          Some of the greatest Justices ever to serve on the Court have been political guys who made no secret of their affiliation (Justice Harlan of NY, to give one example a fair-minded reader could appreciate).

          “Wouldn’t it be nice to actually have Justices who rule based on the Constitution and sometimes surprise us, not on how they want to socially engineer our society?” Let’s add in a due respect for precedent and stare decisis. So good bye, Citizens United. Adios, emergency stay in In Re West Virginia.

  23. Submitted by Larry Moran on 02/16/2016 - 09:25 am.

    The Election Year Rule

    I found this summary of Supreme Court Justice nominees in a presidential election year interesting. I don’t know the website, so can’t vouch for its neutrality, but the article appears to be a simple summary of nominations since 1900. If accurate, I don’t know where the “rule” that has been honored for 80 years comes from (Eisenhower even made a recess appointment).

    I agree with other commentators–I don’t think anyone expects this Senate to confirm an Obama nomination but at least follow the process.

  24. Submitted by Jim Million on 02/16/2016 - 12:54 pm.

    Circling the wagons

    with circular arguments.

  25. Submitted by Hiram Foster on 02/17/2016 - 07:27 am.

    Eight things

    There are only about eight things you can say about a Supreme Court nomination conflict, and only three of them are intelligent. The rest of them fall within the category of the barnyard epithet Jon Stewart railed against in his Daily Show Farewell Address to America.

  26. Submitted by Dennis Wagner on 02/17/2016 - 10:21 pm.

    Eyes of the beholder

    Moderation is in the eyes of the beholder as is good judgement. Does not the beholder already not need to possess a moderate centralist perspective in order to “Judge” what is “social Engineering” relative to the “Constitution”? Or what the framers had in mind or thought could come to mind with “Promote the general welfare” especially using a document written near 250 years ago. Folks also need to remember the writers and signers of the constitution, again, depending on who is looking were very liberal minded individuals, The great experiment, where “all men are created equal”. From this beholder, the Constitution was a starting point, not a starting and ending point. Given the vision and thinking of the writers it is visionary in nature, a living document, not dead on arrival as some folks see it. The founders saw it as living, they new times would change, challenges would change, these were the educated men of the times, why else did they give us a way to change the constitution, and yes the supreme court should help push change along when the country is divided, or lost, they should exercise, good judgment, when a few find ways to stop the many from moving forward or ways to deny “All men are created equal”. Suspect there are many who repeat those words but not know what they are saying. Yes, I want an open minded person on the supreme court, not looking for someone that is still using 17th & 18th century dogma to make decisions for them, we are living in the 21st, times, people and the nation have changed, and will continue to change.

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