How quickly can government procedures move?
February 13, 2016 2:42 PM Subscribe
If Scalia is confirmed dead, will Obama be able to seat a Supreme Court Justice before his term ends?
Impossible to say for sure, but there's less than a year left and at least fifteen senators with every reason in the world to grandstand through January. Especially the like, five still running for President.
Yes, I've lost count.
posted by SMPA at 2:53 PM on February 13, 2016 [1 favorite]
Yes, I've lost count.
posted by SMPA at 2:53 PM on February 13, 2016 [1 favorite]
They could try to stifle an appointment for 11 months, but that would look pretty awful and obstructionist.
posted by nickggully at 2:54 PM on February 13, 2016 [2 favorites]
posted by nickggully at 2:54 PM on February 13, 2016 [2 favorites]
Best answer: According to records compiled by the Senate Judiciary Committee, it takes an average of 2-1/2 months for a nominee to reach a full vote in the Senate. Since the Supreme Court was established in 1789, a total of 28 of 158 nominations have been rejected, withdrawn or not acted on by the Senate, according to the Senate historian's office.
(This is a quote from materials in my file cabinet from a Constitutional law for non-lawyers class I used to teach).
Chart which show time between nomination and confirmation/withdrawal of all nominees via Georgetown University Law Center's supreme court nominations process research guide.
"Abe Fortas, Lyndon Johnson's nominee to be Chief Justice, was filibustered by a Republican-controlled Senate in 1968, as an election neared that ultimately would be won by Richard Nixon, who would then fill the vacancy with Warren Burger."
posted by crush-onastick at 3:23 PM on February 13, 2016 [4 favorites]
(This is a quote from materials in my file cabinet from a Constitutional law for non-lawyers class I used to teach).
Chart which show time between nomination and confirmation/withdrawal of all nominees via Georgetown University Law Center's supreme court nominations process research guide.
"Abe Fortas, Lyndon Johnson's nominee to be Chief Justice, was filibustered by a Republican-controlled Senate in 1968, as an election neared that ultimately would be won by Richard Nixon, who would then fill the vacancy with Warren Burger."
posted by crush-onastick at 3:23 PM on February 13, 2016 [4 favorites]
The so-called "Thurmond Rule" holds that presidents should not make Supreme Court appointments in the "latter part" of an election year, when they have less than six months in office. Its status as an official rule of the Senate is unclear, but in any case, this is certainly not the latter part of an election year, even if it seems like it because the primary season has been going on for ages.
Blocking an appointment for eleven months would look bad, as nickggully said, but I have to say that the current Senate majority seems fairly comfortable with being considered obstructionist.
posted by brianogilvie at 4:30 PM on February 13, 2016 [18 favorites]
Blocking an appointment for eleven months would look bad, as nickggully said, but I have to say that the current Senate majority seems fairly comfortable with being considered obstructionist.
posted by brianogilvie at 4:30 PM on February 13, 2016 [18 favorites]
It just comes down to politics. If republicans think they can delay that long without getting battered in the election, they will.
posted by jpe at 5:56 PM on February 13, 2016
posted by jpe at 5:56 PM on February 13, 2016
If Scalia is confirmed dead, will Obama be able to seat a Supreme Court Justice before his term ends?
No one knows and ultimately it'll probably come down to politics.
Obama will certainly nominate someone, he's made that clear. It takes 51 votes in the Senate to get said nominee to pass. The Republicans have 54 seats in the Senate, while the Democrats have 44, and there are 2 Independents who usually lean Democratic, so that's 46. So the Democrats and the Independents would need 5 Republicans to vote with them, which is totally possible.
But the Senate Majority Leader is Republican and has made it clear that a nomination shouldn't be dealt with until a new President takes office. Since the Majority Leader of the Senate usually sets the agenda, he may not allow the nomination to start. But there's probably some sort of technical maneuvers around that. No doubt both sides are looking at the issue.
So the answer is...we'll see.
posted by Brandon Blatcher at 6:40 PM on February 13, 2016 [1 favorite]
No one knows and ultimately it'll probably come down to politics.
Obama will certainly nominate someone, he's made that clear. It takes 51 votes in the Senate to get said nominee to pass. The Republicans have 54 seats in the Senate, while the Democrats have 44, and there are 2 Independents who usually lean Democratic, so that's 46. So the Democrats and the Independents would need 5 Republicans to vote with them, which is totally possible.
But the Senate Majority Leader is Republican and has made it clear that a nomination shouldn't be dealt with until a new President takes office. Since the Majority Leader of the Senate usually sets the agenda, he may not allow the nomination to start. But there's probably some sort of technical maneuvers around that. No doubt both sides are looking at the issue.
So the answer is...we'll see.
posted by Brandon Blatcher at 6:40 PM on February 13, 2016 [1 favorite]
They could try to stifle an appointment for 11 months, but that would look pretty awful and obstructionist.
Not to far-right crowd that the Republican candidates seem to court. There's a segment of the party that will love it.
posted by 26.2 at 6:44 PM on February 13, 2016 [4 favorites]
Not to far-right crowd that the Republican candidates seem to court. There's a segment of the party that will love it.
posted by 26.2 at 6:44 PM on February 13, 2016 [4 favorites]
Regarding how long they could or would block a nominee, let's not forget one Ted Cruz sits on the judiciary committee which will be trying to stymie Obama.
posted by Exceptional_Hubris at 6:52 PM on February 13, 2016
posted by Exceptional_Hubris at 6:52 PM on February 13, 2016
The President nominates, the Senate approves, per the Constitution.
Right-wingers these days care little for the Constitution when it thwarts their ideological aims.
The GOP majority in the Senate could certainly attempt to stall for months. Cruz would certainly be involved in that. But, he has few friends in the Senate and can't really count on the support, or tolerance, of the leadership.
Right wingers consistently overestimate their sway with mainstream non-extremist voters, so determined obstructionism would almost certainly be an election issue that would cost them votes.
But it would continue to stoke anger in the base and help raise money, which is, I'm sure, enough to satisfy most right-wing politicos and media spinners.
posted by justcorbly at 3:37 AM on February 14, 2016
Right-wingers these days care little for the Constitution when it thwarts their ideological aims.
The GOP majority in the Senate could certainly attempt to stall for months. Cruz would certainly be involved in that. But, he has few friends in the Senate and can't really count on the support, or tolerance, of the leadership.
Right wingers consistently overestimate their sway with mainstream non-extremist voters, so determined obstructionism would almost certainly be an election issue that would cost them votes.
But it would continue to stoke anger in the base and help raise money, which is, I'm sure, enough to satisfy most right-wing politicos and media spinners.
posted by justcorbly at 3:37 AM on February 14, 2016
Best answer: SCOTUS BLOG'S AMY HOWE: In the wake of the death of Justice Antonin Scalia, questions have arisen about whether there is a standard practice of not nominating and confirming Supreme Court Justices during a presidential election year. The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election. In that period, there were several nominations and confirmations of Justices during presidential election years.
posted by Carol Anne at 5:07 AM on February 14, 2016 [4 favorites]
posted by Carol Anne at 5:07 AM on February 14, 2016 [4 favorites]
"The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election. In that period, there were several nominations and confirmations of Justices during presidential election years."
Given this (thanks Carol Anne) and McConnell's stating that they will not let a confirmation go through this year, it really is apparent the GOP does not care if they are seen as obstructionist. Going back over 100 years, it's never happened, so of course these Senators are going to try to do it.
posted by getawaysticks at 6:15 AM on February 14, 2016
Given this (thanks Carol Anne) and McConnell's stating that they will not let a confirmation go through this year, it really is apparent the GOP does not care if they are seen as obstructionist. Going back over 100 years, it's never happened, so of course these Senators are going to try to do it.
posted by getawaysticks at 6:15 AM on February 14, 2016
Reagan did it
posted by Jacqueline at 6:59 AM on February 14, 2016
posted by Jacqueline at 6:59 AM on February 14, 2016
An instructive example of what an obstructionist Congress is capable of is that of John Tyler.
"President John Tyler had a particularly difficult time filling vacancies. Smith Thompson died in office December 18, 1843. His replacement, Samuel Nelson, was in office starting February 14, 1845. That’s a vacancy of 424 days. Henry Baldwin died in office April 21, 1844. His replacement, Robert Cooper, was in office starting August 4, 1846. This vacancy lasted 835 days because Tyler could not get the Senate to work with him. During Tyler’s presidency, the Senate rejected nine separate Supreme Court nominations!" The Federalist
In this case, 1844 was the election year and the Whig Congress was hoping Clay would win and pick the next justices. However, they were pretty dissapointed when Polk won instead and eventually let Tyler have one of his picks right before he left office.
posted by permiechickie at 7:15 AM on February 14, 2016 [2 favorites]
"President John Tyler had a particularly difficult time filling vacancies. Smith Thompson died in office December 18, 1843. His replacement, Samuel Nelson, was in office starting February 14, 1845. That’s a vacancy of 424 days. Henry Baldwin died in office April 21, 1844. His replacement, Robert Cooper, was in office starting August 4, 1846. This vacancy lasted 835 days because Tyler could not get the Senate to work with him. During Tyler’s presidency, the Senate rejected nine separate Supreme Court nominations!" The Federalist
In this case, 1844 was the election year and the Whig Congress was hoping Clay would win and pick the next justices. However, they were pretty dissapointed when Polk won instead and eventually let Tyler have one of his picks right before he left office.
posted by permiechickie at 7:15 AM on February 14, 2016 [2 favorites]
I expect Obama will nominate someone relatively immediately, for this opening would be his best opportunity to cement his policies, even above a succeeding democratic president. He's been very good at framing his social policies in ways that cannot be ruled unconstitutional. Therefore, chances are that he would put forward another constructionist, with liberal leanings that would not be unacceptable to moderate republicans. Given the way he has structured things, he doesn't need an activist justice to side with his policies, he needs a constructionist judge to rule them a not-unconstitutional.
That, or he'll step down immediately and have Biden nominate Obama himself, which would be a triple play – legislative, executive, and judiciary.
posted by nickrussell at 7:42 AM on February 14, 2016 [1 favorite]
That, or he'll step down immediately and have Biden nominate Obama himself, which would be a triple play – legislative, executive, and judiciary.
posted by nickrussell at 7:42 AM on February 14, 2016 [1 favorite]
It's an opening negotiating position. The more Republicans can convince Democrats that they will stall for 11 months, the more likely they are to get a nominee who's more conservative than Obama would ordinarily prefer. In 3-6 months the Senate will confirm someone who's more or less ideologically neutral, after a lot of back-room deals with the president.
posted by miyabo at 10:27 AM on February 14, 2016
posted by miyabo at 10:27 AM on February 14, 2016
Not a matter of how quickly government procedures can move, but how quickly they will. There's certainly plenty of time to get it done if Senate Republicans play ball, but I doubt they will.
posted by rainbowbrite at 11:46 AM on February 14, 2016
posted by rainbowbrite at 11:46 AM on February 14, 2016
This thread is closed to new comments.
So, really, it's up to just how obstructionist the Republicans wanna be. Buckle up for a year or more of an 8-justice Court.
posted by fifthrider at 2:45 PM on February 13, 2016 [5 favorites]