Friday, April 15, 2016


Ian Millhiser of ThinkProgress thinks Hillary Clinton was very clever last night:
Late in Thursday night’s debate ... Clinton was asked if she would ask the president to withdraw Chief Judge Merrick Garland’s nomination to the Supreme Court -- presumably so that she could select her own nominee -- if she wins the presidential election. Clinton rather explicitly refused to answer the question. “I am not going to contradict the president’s strategy on this,” she began. Then, after briefly supporting President Obama’s right to name a justice and calling upon the Senate to consider Garland’s nomination, Clinton offered what may be the single most significant sentence she said last night:

“When I am president, I will take stock of where we are and move from there.”

It’s a noncommittal statement that hardly comes off as a robust endorsement of the Garland nomination. Nevertheless, both Garland and the White House should be thrilled that Clinton took this approach. Her non-commitment to Garland is the judge’s best chance at confirmation.
Garland is a centrist, and at 63 is older than most recent Supreme Court nominees, which means he's likely to spend twenty fewer years on the Court than a fortysomething nominee if confirmed. So if Clinton is saying she might pick someone else, surely the GOP is thinking: Maybe we should confirm Garland now -- otherwise, we risk a younger, more liberal nominee in a Clinton presidency. Right?

Nahh, I don't think so. And I'm not sure President Obama does, either.

The Obama administration is now talking about an era of permanent partisanship in the Supreme Court appointment process:
White House press secretary Josh Earnest raised eyebrows during today's press briefing by suggesting that Democrats would be “justified” to take revenge on the GOP blockade against Supreme Court nominee Merrick Garland by blocking a possible GOP president’s nomination for the president's full term.

Earnest was recalling a suggestion President Obama made in an interview with Fox News Sunday in which he said if Republicans continued blocking Garland until he left office then “it is almost impossible to expect” that Democrats wouldn’t retaliate if given the opportunity.

"What's to stop Democrats who are in charge of the Senate when a Republican is in office, from saying, 'Well, we're just going to wait the four years to fill the vacancy.' There is no material difference in that argument. That would represent a breakdown of the process," Earnest said.

But Earnest went just a bit further, after a reporter asked, “Would they really do that?”

“They would be justified in doing it, based on what Republicans have done so far,” Earnest said, adding “Hopefully, they -- it won't come to that.”
The president has talked about this on more than one occasion. This was from last week:
President Barack Obama returned to the University of Chicago on a mission to encourage law students not to give up on government. But he ended up laying out a near apocalyptic vision of Washington's future if Republicans don’t confirm his Supreme Court nominee.

Imagine the Democratic payback when they get the chance, he said. And then, imagine what the GOP would do in response, predicting that Senate Majority Leader Mitch McConnell would kill the filibuster for Supreme Court nominees if a Republican wins the current presidential election.

And then, he said, whenever there’s a divided government, there will be a freeze on any judicial confirmations, piling up caseloads and destroying any remaining faith Americans have in the judicial system.

Vacancies could last for a president’s full term or more.

“We’ll wait four more years,” Obama predicted, and then it'll become “just a majoritarian exercise in the Senate of who controls the presidency and who controls the Senate.”
Either the president is consciously echoing this Jonathan Chait post from February, or he spotted the same storm clouds on the horizon that Chait sees:
Mere respect for the presidency isn’t going to make a Senate controlled by the opposing party confirm a Supreme Court justice any more than it’s going to make it pass a health-care bill. The era of parties letting the other side win -- on anything -- is over....

If Hillary Clinton wins in November and Republicans retain the Senate, they may feel shamed by their promises to let the voters decide the Court’s next nominee and give her a justice. Or maybe not -- maybe some dastardly Clinton campaign tactic, or reports of voter fraud on Fox News, will make them rescind their promise. The Supreme Court could remain deadlocked at 4-4 for the remainder of her term....

A world in which Supreme Court justices are appointed only when one party has both the White House and the needed votes in Congress would look very different from anything in modern history. Vacancies would be commonplace and potentially last for years. When a party does break the stalemate, it might have the chance to fill two, three, four seats at once.
I think that's the world we're entering. I think Mitch McConnell will switch from "Let the 2016 voters decide" to "Let the NRA decide" in the event of a Clinton victory (recall that he's said he doesn't even want to consider Garland in a lame-duck session because Garland is opposed by the NRA and the National Federation of Independent Business). I think the Democrats' only hope of filling that vacancy will come if the party also win the Senate and abolishes Supreme Court filibusters -- and even then I can imagine McConnell trying to flip a red-state Democrat or two if that would be enough to block Clinton's pick. (I want to believe that the Democrats will stand united, but if her pick upsets the NRA, or is the wrong color or sexual orientation, I'm not sure.)

I understand the Obama and Clinton chess moves, but Republicans simply aren't playing.


Luigi said...

Which is why its time to stop screwing around with Sanders and start giving money to Democratic Senate candidates who can and will win with the support an HRC tidal wave will create.

Feud Turgidson said...

Ken Starr is thinking more legal beagle strtegal than McConnell and the Heritage nim-nodes that pull McConnell's strings. The latter all see there being zero effective difference between a Marxist ultra fem super lib trans-gendered hippy on the court and Merrick Garland. It's really hard to argue the point because the FreeDumbers have - not just figuratively in terms of primary-ing their sorry pancake butts completely out of the lucrative politics game, but quite possibly literally as well - a gun to the head of McConnell, of Ryan, and indeed of anyone in GOP establishment leadership.

It does no good at all to raise nuances of reasonable centrist measure Garland versus pretty much the most liberal judge in all the Circuit Courts fo Appeal with McConnell and Chuckles Grassley or anyone anywhere near the top of Congressional GOP establishment leadership. They're all concerned less with such details as staying upright.

When the White Supremacists lose THIS presidential election, a lot of folks are going to be beat up, terrorized, shot at, shot period, their homes and businesses burned down and many of them killed.

Jim Snyder said...

IMO this is absolutely correct, but it isn't the only possibility.

Matthew Stephenson argues that by refraining from voting on a nomination for some period of time the Senate de facto confirms that nominee:

It'd trigger a constitutional crisis, but you could argue that the Senate's refusal to hold hearings on a nominee ipso facto creates a constitional crisis.

Ken_L said...

"When a party does break the stalemate, it might have the chance to fill two, three, four seats at once."

This. The right may be hoping Ginsberg dies or retires soon, restoring a conservative majority. Then they can smugly offer to confirm Garland as Ginsberg's replacement provided Hillary nominates a suitably conservative replacement for Scalia. Don't like it? It's OK, we're happy with a 7 person bench.

If one of the conservative justices is next to go, well they're no worse off in their own eyes than they would be by consenting to Garland. Especially if Kennedy is the one to go. And they will cling to the glorious prospect of taking both the White House and the Senate in 2020, when they can appoint a raft of young conservatives led by Ted Cruz to dominate the Supreme Court for a generation.

Daro said...

@Luigi. Hillary is the problem, not the answer.

Marc said...

I have a fantasy scenario I'd like to play out. The (R) Senate stonewalls on the Supreme Court nominee up to the election. The (D) nominee wins the in a landslide, plus the Senate becomes strongly (D) again, and the House gets a few more (D)'s to help ease up on the gridlock there. President Obama then withdraws his nominee from consideration. The new President nominates Obama as the new nominee. Wingnuts go wild!

Daro said...

Obama's too feckless to want the job. I think he's dreaming of a Tony Blair-like retirement. Jetting around the globe on the sovereigns' dime handing out advice to the great and good for massive fees, everyone bowing and scraping as he enters the room while he plays it casual.